DCIT CC 3(1) CEN RG 3, MUMBAI V. WIND WORLD WIND FARMS (KARNATAKA) LTD, MUMBAI

ITA 6826/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1004 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Department
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 21-11-2016
• Court: TRIBUNAL
• Department Lawyers: SUNIL JHA
• Assessee Lawyers: A K GHOSH
• Keywords: Depreciation
• Section: 143(3); 153A

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 68 26 /MUM/ 201 6 (ASSESSMENT YEAR 20 07 - 08 ) DCIT CC - 3(1) CENTRAL RANGE - 3 ROOM NO. 1913/1924 19 TH FLOOR AIR INDIA BUILDING NARIMAN POINT MUMBAI - 400021. VS. M/S .WIND WORLD WIND FARMS (KARNATAKA ) LTD. A - 9, ENERCON TOWER VEERA DESAI ROAD VEERA INDUSTRIAL ESTATE, ANDHERI WEST MUMBAI - 400 053. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAABCE3106B ASSESSEE BY SHRI A.K. GHOSH DEPARTMENT BY SHRI SUNIL JHA DATE OF HEAR ING 4 . 5. 201 7 DATE OF PRONOUNCEMENT 4 .5 . 201 7 O R D E R THE REVENUE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 26 - 08 - 2016 PASSED BY LD CIT(A) - 51, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2007 - 08. THE SOLITARY ISSUE URGED BY REVENUE IS WHETHER THE LD CIT(A) WAS JUSTIFIED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEPRECIATION AT THE RATE APPLICABLE TO WIND MILL IN RESPECT OF PLINTH/FOUNDATION COST. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PRODUCTION OF ELECTRICITY THROUGH WI ND MILLS. THE PRESENT ASSESSMENT WAS COMPLETED U/S 153A R.W.S. 143(3) OF THE ACT CONSEQUENT TO SEARCH OPERATIONS CONDUCTED ON 14.3.2013. THE ASSESSEE HAD TREATED THE COST OF PLINTH/FOUNDATION OF WIND MILL AS PART OF WIND MILL AND HAD CLAIMED DEPRECIATI ON @ 80%. THE AO ALLOWED THE DEPRECIATION AT 5% TREATING THE SAME AS BUILDING. THE LD CIT(A) ALLOWED THE 2 CLAIM OF THE ASSESSEE BY FOLLOWING THE DECISION RENDERED BY THE TRIBUNAL ON IDENTICAL ISSUE. AGGRIEVED, THE REVENUE HAS FILED THIS APPEAL. 3. I HEARD THE PARTIES AND PERUSED THE RECORD. THE LD A.R FURNISHED A COPY OF ORDER PASSED BY THE CO - ORDINATE BENCH IN THE CASE OF M/S ENERCON WINDFARMS (JAISALMER) P LTD IN ITA NO.2666/MUM/2009 DATED 04 - 06 - 2010, WHEREIN THE TRIBUNAL HAS HELD THAT THE BASEMENT CONSTRUCTED BY THE ASSESSEE TO INSTALL AND WITH - HOLD THE HEAVY WIND MILL IS PART AND PARCEL OF THE WIND MILL AND WITHOUT SPECIALLY DESIGNED BASEMENT, THE WINDMILL CANNOT STAND. ACCORDINGLY IT WAS FURTHER HELD THAT THE SAME HAS TO BE TREATED AS PLANT AND HIGHER DEPRECIATION CLAIMED BY THE ASSESSEE HAS TO BE ALLOWED. 4. THE LD D.R DID NOT FURNISH ANY CONTRARY DECISION OF ANY HIGHER FORUM. SINCE THE LD CIT(A) HAS FOLLOWED THE DECISION RENDERED BY THE ITAT ON AN IDENTICAL ISSUE, I DO NOT FIND ANY INFIRM ITY IN HIS ORDER. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 4 . 5 . 201 7. SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; D ATED : 4 / 5 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS I TAT, MUMBAI