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

ITA 6831/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1107 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2017
• Appeal Filed By: Department
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 21-11-2016
• Court: TRIBUNAL
• Department Lawyers: SUNIL JHA
• Assessee Lawyers: A K GHOSH
• Keywords: Depreciation
• Section: 143(3); 153A; 132; 2

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 6831 /MUM/ 201 6 (ASSESSMENT YEAR 20 09 - 1 0 ) 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 (KRISHNA) LTD. A - 9, ENERCON TOWER VEERA DESAI ROAD VEERA INDUSTRIAL ESTATE, ANDHERI WEST MUMBAI - 400 053. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAACE3529M ASSESSEE BY SHRI A.K. GHOSH DEPARTMENT BY SHRI SUNIL JHA DATE OF HEARING 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 2009 - 10. THE REVENUE IS AGGRIEVED BY THE DECISIO N OF LD CIT(A) IN DELETING THE DISALLOWANCE MADE OUT OF REPAIRS & MAINTENANCE EXPENSES. 2. THE PRESENT ASSESSMENT WAS COMPLETED BY THE AO U/S 153A OF THE ACT CONSEQUENT TO THE SEARCH OPERATIONS CONDUCTED UPON THE ASSESSEE U/S 132 OF THE ACT ON 14.3.201 3. THE AO DISALLOWED REPAIRS & MAINTENANCE EXPENSES TO THE TUNE OF 56,40,625/ - (RS.59,37,500 LESS DEPRECIATION) TREATING THE SAME AS CAPITAL IN NATURE. IT IS PERTINENT TO NOTE THAT THE ASSESSING OFFICER HAS MADE THE ADDITION BY FOLLOWING THE ORDER ORIGIN ALLY PASSED U/S 143(3) OF THE ACT, WHEREIN SIMILAR DISALLOWANCE WAS MADE. EVEN THOUGH THE SAID DISALLOWANCE HAD BEEN DELETED BY THE ITAT, YET THE AO MADE IDENTICAL DISALLOWANCE IN THE PRESENT SEC. 2 153A ASSESSMENT ALSO ON THE REASONING THAT THE DECISION RE NDERED BY THE TRIBUNAL HAS BEEN CHALLENGED BY THE REVENUE BY FILING APPEAL BEFORE HONBLE BOMBAY HIGH COURT. 3. IN THE APPELLATE PROCEEDINGS, THE LD CIT(A) DELETED THE ADDITION BY FOLLOWING THE DECISION RENDERED BY THE TRIBUNAL IN THE EARLIER PROCEEDIN G. AGGRIEVED, THE REVENUE HAS FILED THIS APPEAL. 4. I HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICE THAT IDENTICAL ADDITION MADE IN THE ORIGINAL PROCEEDINGS WAS DELETED BY THE TRIBUNAL, VIDE ITS ORDER DATED 17 - 09 - 2013 PASSED IN ITA NO.4896/MUM /2012 BY MAKING FOLLOWING OBSERVATIONS: - ... OBVIOUSLY, THE EXPENDITURE IS INCURRED ON MAINTAINING THE ROAD TO WIND FARMS IN REMOTE AREAS AND NO NEW ASSET CAME INTO EXISTENCE. HAVING REGARD TO THE PRINCIPLES LAID DOWN BY THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. UDAIPUR MINERAL DEVELOPMENT SYNDICATE (P) LTD (203 ITR 0556), WHICH WAS RELIED ON BY LD CIT(A), THE EXPENDITURE FOR REPAIRS IN RESPECT OF ROAD IS REVENUE IN NATURE. 5. I NOTICE THAT THE CO - ORDINATE BENCH OF THE TRIBUNAL HAS ALRE ADY TAKEN A VIEW ON THIS MATTER IN THE ORIGINAL PROCEEDING AND THE SAME HAS BEEN FOLLOWED BY THE LD CIT(A) IN THE PRESENT PROCEEDINGS. HENCE I DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE. 6. IN THE RESULT, THE APPEAL FILE D BY THE REVENUE IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 4 . 5 . 201 7. SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 4 / 5 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 3 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI