KAILASH WINDFARMS, TIRUPUR V. INCOME TAX OFFICER WARD 1 (1), TIRUPUR

ITA 425/CHNY/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4976 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 06-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR ERODE

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL A SMC BENCH : CHENNAI . . . , . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER & SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.425/CHNY/2018 / ASSESSMENT YEAR :2014-15 M/S.KAILASH WIND FARMS , 22,2 ND STREET, KUMAR NAGAR EAST, TIRUPUR 641 602. VS. THE INCOME TAX OFFICER, WARD -1(1), TIRUPUR. [PAN AAMFK 6643 H ] ( / APPELLANT) ( /RESPONDENT) ! ' # / APPELLANT BY : MR.S.SRIDHAR,ADVOCATE (ERODE) $% ! ' # /RESPONDENT BY : MR.B.SAGADEVAN, JCIT,D.R & ' ' () / DATE OF HEARING : 12 - 0 7 - 201 8 * ' () / DATE OF PRONOUNCEMENT : - 0 7 - 201 8 / O R D E R PER N.R.S. GANESAN , JUDICIAL MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-3, COIMBAT ORE, DATED 28.11.2017 FOR THE ASSESSMENT YEAR 2014-15. 2. SHRI S.SRIDHAR, THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERATION IS DIS ALLOWANCE OF CLAIM OF ASSESSEE U/S.80-IA OF THE ACT. ACCORDING TO THE LD. A.R, THE ASSESSEE ITA NO.425/CHNY/2018 :- 2 -: CLAIMED DEDUCTION OF ` 26,31,820/- U/S.80(IA) OF THE ACT. ACCORDING TO LD. COUNSEL FOR THE ASSESSEE, THE ASSESSEE PURCHASE D THE WINDMILL AS A GOING CONCERN. THE LD. ASSESSING OFFICER DISALLOWED THE CLAIM OF ASSESSEE ON THE GROUND THAT THE WINDMILL UNDERTAKIN G WAS FORMED BY TRANSFER OF MACHINERY, WHICH WAS EARLIER USED BY OT HER COMPANY. FURTHER, THE LD.A.R CLARIFIED THAT THE WINDMILL WAS PURCHASED BY THE ASSESSEE AS A GOING CONCERN; THEREFORE, IT IS NOT A CASE OF FORMATION OF UNDERTAKING BY USING THE MACHINERY, WHICH WAS USED BY THE OTHER COMPANY. HENCE, THE ASSESSEE IS ELIGIBLE FOR DEDUC TION U/S.80-IA OF THE ACT FOR THE REMAINING PERIOD. 3. ON THE CONTRARY, MR.B.SAGADEVAN, LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT FOR THE PURPOSE OF CL AIMING DEDUCTION U/S.80-IA OF THE ACT, THE ASSESSEE IS TO FULFILL TH E CONDITIONS PROVIDED U/S.80-IA(3) OF THE ACT. THE LD.D.R SUBMITTED THAT THE FIRST CONDITION IS THAT THE MACHINERY SHALL NOT BE TRANSFERRED FROM OT HER UNIT OR PLANT. IN OTHER WORDS, THE MACHINERY SHALL NOT BE USED BY ANO THER UNDERTAKING. IN THIS CASE, ADMITTEDLY, THE MACHINERY NAMELY WIND MILL WAS USED BY THE OTHER COMPANY. THEREFORE, THE ASSESSEE IS NOT E LIGIBLE FOR DEDUCTION U/S.80-IA(3) OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ONLY DISPUTE BETWEEN THE ASSESSEE AND THE REVENUE, IS THAT THE M ACHINERY, NAMELY ITA NO.425/CHNY/2018 :- 3 -: WINDMILL, WAS EARLIER USED BY OTHER COMPANY. THE AS SESSEE CLAIMS THAT THE WIND MILL WAS PURCHASED BY THE ASSESSEE AS A GO ING CONCERN AND DOES NOT FORM NEW UNDERTAKING. THIS FACT IS NOT DI SPUTED BY THE REVENUE. IN OTHER WORDS, THE PURCHASE OF THE WIND M ILL UNDERTAKING AS A GOING CONCERN BY THE ASSESSEE IS NOT DISPUTED BY THE REVENUE. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80-IA OF THE ACT IN R ESPECT OF REMAINING PERIOD. HENCE, ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE LD. ASSESSING OFFICER IS DIRECTED TO ALLOW THE CLAIM OF DEDUCTION MADE U/S.80-IA OF THE ACT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED ON 09 TH AUGUST, 2018, AT CHENNAI. SD/ - SD/ - ( . ) (A.MOHAN ALANKAMONY) / ACCOUNTANT MEMBER ( . . . ) (N.R.S. GANESAN ) ! / JUDICIAL MEMBER - ' / CHENNAI . / DATED: 09 TH AUGUST, 2018. K S SUNDARAM / ' $(01 2 1( / COPY TO: 1 . ! / APPELLANT 3. & 3( () / CIT(A) 5. 145 $(6 / DR 2. $% ! / RESPONDENT 4. & 3( / CIT 6. 57 8' / GF