DCIT, Cuddalore V. Shri M.Gunasekaran, Villupuram

ITA 63/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64534 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 08-11-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 12-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: D ANAND
• Keywords: Depreciation
• Section: 143(3); 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ------- ITA NO.63/MDS/2012 ASSESSMENT YEAR : 2008-09 THE DY. COMMISSIONER OF INCOME-TAX, CIRCLE-II, CUDDALAORE. V. SHRI M. GUNASEKARAN, 91, KAMARAJ STREET, VILLUPURAM. (PAN :AACPG0230G) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIRUDH RAI, CIT-DR RESPONDENT BY : SHRI D. ANAND, ADVOCATE DATE OF HEARING : 08-1 1-2012 DATE OF PRONOUNCEMENT : 08-11-201 2 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE CIT(APPEALS)-XII, CHENNAI DATED 19-10-2011 F OR THE ASSESSMENT YEAR 2008-09. 2. BRIEF FACTS ARE THAT THE ASSESSEE FILED HIS RETUR N OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 13-10-200 8 ITA NO.63/MDS /2012 2 ADMITTING TOTAL INCOME OF ` 1,15,65,790/-. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER UNDER SE CTION 143(3) DATED 23-12-2010 HELD THAT SINCE THE ASSESSE E HAD NOT EXERCISED OPTION TO CLAIM HIGHER RATE OF DEPRECIATI ON ON WINDMILL BEFORE THE DUE DATE TO FILE THE RETURN OF INCOME, THE ASSESSEE WAS NOT ENTITLED FOR HIGHER RATE OF DEPREC IATION. ACCORDINGLY, THE ASSESSING OFFICER DISALLOWED THE A SSESSEES CLAIM OF HIGHER RATE OF DEPRECIATION ON WINDMILL. 3. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE CIT(APPEALS). BEFORE THE LEARNED CIT(APPEALS) THE A SSESSEE RELIED ON THE DECISION OF THE CO-ORDINATE BENCH OF T HIS TRIBUNAL IN THE CASE OF K.K.S.K. LEATHER PROCESSORS PVT. LTD . V. ITO (130 TTJ (CHENNAI) 184, WHEREIN THE TRIBUNAL HAS HELD T HAT THE ASSESSEE HAD SATISFIED THE REQUIREMENT OF SECOND PR OVISO TO RULE 5(1A) AND, THEREFORE, IT WAS ENTITLED TO DEPRE CIATION ON WIND ELECTRIC GENERATORS AS PER APPENDIX I. FOLLOW ING THE ABOVE DECISION OF THE TRIBUNAL, THE LEARNED CIT(APP EALS) HELD IN THE PRESENT CASE THAT THE ASSESSEES CLAIM OF DE PRECIATION @ 80% MADE IN THE RETURN OF INCOME, WHICH WAS FILED W ITHIN THE DUE DATE AMOUNTED TO EXERCISING THE OPTION WITHIN T HE MEANING OF CLAUSE (I) OF SUB-SECTION (1) OF SECTION 32 READ WITH ITA NO.63/MDS /2012 3 SECOND PROVISO TO RULE 5(1A). ACCORDINGLY THE ASSE SSEE WAS HELD TO BE ELIGIBLE FOR HIGHER RATE OF DEPRECIATION ON WINDMILL. 4. AGGRIEVED, THE REVENUE HAS FILED THE PRESENT APP EAL BEFORE US. THE LEARNED DR SUBMITTED THAT THE CLAIM MADE IN THE RETURN OF INCOME REGARDING DEPRECIATION OF WIND MILL WOULD NOT AMOUNT TO EXERCISING OPTION AS REQUIRED UNDER T HE SECOND PROVISO TO RULE 5(1A) OF THE INCOME TAX RULES, 1962 . THE LEARNED DR THEREFORE SUBMITTED THAT THE ORDER OF TH E LEARNED CIT(APPEALS) SHOULD BE SET ASIDE AND THAT OF THE OR DER OF THE ASSESSING OFFICER BE RESTORED. 5. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTH ER HAND, SUPPORTED THE ORDER PASSED BY THE LEARNED CIT(APPEA LS). 6. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORD S AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LEARNED CIT(APPEALS) WHILE ALLOWING THE CL AIM OF THE ASSESSEE FOR HIGHER RATE OF DEPRECIATION ON WINDMIL L HAS FOLLOWED THE ORDER OF THE TRIBUNAL IN THE CASE OF K .K.S.K. LEATHER PROCESSORS PVT. LTD. V. ITO (SUPRA). THE R ELEVANT PORTION IN THE ORDER OF THE TRIBUNAL, HAS BEEN EXTR ACTED BY THE LEARNED CIT(APPEALS) IN HIS ORDER. ITA NO.63/MDS /2012 4 THE REVENUE HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SHOW THAT THE DECISION OF THE TRIBUNAL, REFERRED TO ABOV E, HAS EITHER BEEN REVERSED OR MODIFIED BY THE HONBLE HIGH COURT . IN THE CIRCUMSTANCES, WE FIND NO INFIRMITY IN THE ORDER PA SSED BY THE LEARNED CIT(APPEALS) AND THEREFORE THE SAME IS CONF IRMED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THURSDAY, THE 8 TH OF NOVEMBER, 2012, AT CHENNAI. SD/- SD/- (ABRAHAM P. GEORGE) ( V.DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 08 TH NOVEMBER, 2012. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE