Mahabal Metals Pvt Ltd, Miraj V. Assistant Commissioner of Income tax, Sangli

ITA 380/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8803 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-07-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 14-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N ASHOK BABU
• Keywords: Depreciation; Additional depreciation
• Section: 32(1)(iia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 380 /PUN/201 7 / ASSESSMENT YEAR : 20 1 2 - 13 MAHABAL METALS PVT. LTD., PLOT NO. 23 & 24, MIDC, MIRAJ BLOCK, MIRAJ - 416410 PAN : AABCM8611K ....... / APPELLANT / V/S. A SSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2, SANGLI / RESPONDENT ASSESSEE BY : SHRI C.H. NANIWADEKAR REVENUE BY : SHRI N. ASHOK BABU / DATE OF HEARING : 0 5 - 07 - 2019 / DATE OF PRONOUNCEMENT : 10 - 0 7 - 2019 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 1, KOLHAPUR DATED 08 - 12 - 2016 FOR THE ASSESSMENT YEAR 201 2 - 13. 2 ITA NO . 380/PUN/2017, A.Y. 2012 - 13 THE SOLITARY GROUND RAISED BY THE ASSESSEE IN APPEAL IS AGAINST DISALLOWANCE OF ADDITIONAL DEPRECIATION CLAIMED U/S. 32(1)(IIA) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON WINDMILL. 2. SHRI C.H. NANIWADEKAR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS ENGAGED IN MANUFACTURING OF AUTO PARTS AND GENERATION OF ELECTRIC ITY THROUGH WINDMILL. THE ASSESSEE HAS INSTALLED FOUR WINDMILL UNITS AND HAS CLAIMED ADDITIONAL DEPRECIATION ON THE WINDMILL. THE ASSESSING OFFICER AND THE COMMISSIONER OF INCOME TAX (APPEALS) HAVE DENIED THE ASSESSEES CLAIM OF ADDITIONAL DEPRECIATION O N WINDMILL U/S. 32(1)(IIA) OF THE ACT. THE ISSUE IS NOW SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. HI TECH ARAI LTD. REPORTED AS 321 ITR 477 , WHICH WAS SUBSEQUENTLY FOLLOWED BY THE HONBLE HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ATLAS EXPORT ENTERPRISES REPORTED AS 373 ITR 414 (MAD.) . THE LD. AR SUBMITTED THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. V.M. SALGAONKA R & BROS. (P.) LTD. REPORTED AS 272 CTR 25 HAS HELD THAT WHERE THE ASSESSEE IS ALSO ENGAGED IN GENERATION OF WINDMILL ENERGY , T HE ASSESSEE WOULD BE ENTITLED TO ADDITIONAL DEPRECIATION UNDER THE PROVISIONS OF SECTION 32(1)(IIA) OF THE ACT. THE LD. AR FURTH ER SUBMITTED THAT PUNE BENCH THIRD MEMBER DECISION IN THE CASE OF M/S. GIRIRAJ ENTERPRISES VS. DY. COMMISSIONER OF INCOME TAX REPORTED AS 186 TTJ 146 HAS REITERATED THE LAW LAID DOWN BY THE HONBLE MADRAS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TA X VS. ATLAS EXPORT ENTERPRISES (SUPRA). 3 ITA NO . 380/PUN/2017, A.Y. 2012 - 13 3. ON THE OTHER HAND SHRI N. ASHOK BABU REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER AND PRAYED FOR DISMISSING THE APPEAL OF ASSESSEE. 4. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PERUSED. THE SOLITARY ISSUE IN THE APPEAL IS WITH RESPECT TO ALLOWABILITY OF ASSESSEES CLAIM OF ADDITIONAL DEPRECIATION U/S. 32(1)(IIA) OF THE ACT ON WINDMILL. THE ALLOWABILITY OF ADDITIONAL DEPRECIATION ON WINDMILL IS NO MORE RES INTEGRA. THE HONBLE MADRAS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. HI TECH ARAI LTD. (SUPRA) HAS HELD THAT APART FROM OTHER BUSINESS WHERE THE ASSESSEE IS ENGAGED IN GENERATION OF POWER THROUGH WINDMILL, THE ASSESSEE IS ELIGIBLE TO CLAIM ADDITIONAL DEPRECIAT ION U/S. 32(1)(IIA) OF THE ACT. THIS POSITION WAS REITERATED BY THE HONBLE MADRAS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ATLAS EXPORT ENTERPRISES (SUPRA). THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. V.M. SALGAONKAR & BROS. (P.) LTD. (SUPRA) HAD HELD THAT WHERE THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF IRON ORE AND ALSO IN GENERATION OF WINDMILL ENERGY, THE ASSESSEE WOULD BE ENTITLED TO ADDITIONAL DEPRECIATION U/S. 32(1)(IIA) OF THE ACT. THE TRIBUNAL IN VARIOUS DECISIONS HAVE REITERATED THE LAW LAID DOWN BY THE HONBLE MADRAS HIGH COURT AND THE HONBLE BOMBAY HIGH COURT. 5. THUS, IN VIEW OF WELL SETTLED LAW, WE FIND MERIT IN THE CONTENTIONS OF THE ASSESSEE AND ALLOW THE SOLITARY GROUND RAISED IN THE APPEAL. THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE ARE REVERSED . THE ASSESSING OFFICER IS DIRECTED TO GRANT THE BENEFIT OF 4 ITA NO . 380/PUN/2017, A.Y. 2012 - 13 ADDITIONAL DEPRECATION U/S. 32(1)(IIA) OF THE ACT ON WINDMILL TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 10 TH DAY OF JULY, 2019. SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 10 TH JU LY, 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 1, KOLHAPUR 4. THE PR. COMMISSIONER OF INCOME TAX - 1, KOLHAPUR 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE