DCIT Circle 1, Salem V. Ashok Wind Farm Pvt. Ltd., Salem

ITA 901/CHNY/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8936 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 02-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI , , ( BEFORE SHRI GEORGE MATHAN , JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.901/CHNY/2019 /ASSESSMENT YEAR: 2015-16 THE DY. COMMISSIONER OF- INCOME TAX, CIRCLE-1, NO.3, GANDHI ROAD, SALEM-636 007. VS. M/S.ASHOK WIND FARM- PVT. LTD., NO.4/36, BHARATHI STREET, SWARNAPURI, SALEM-636 004. [ PAN : AAKCA 7684 H ] ( * /APPELLANT) ( +,* /RESPONDENT) DEPARTMENT BY : MR.MARUDHA PANDIAN, JCIT ASSESSEE BY : MR.G.BASKAR, ADV. . /DATE OF HEARING : 08.07.2019 . /DATE OF PRONOUNCEMENT : 08.07.2019 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), SALEM-7, IN I TA NO.41/2017-18 DATED 18.01.2019 FOR THE AY 2015-16. 2. MR. MARUDHA PANDIAN, JCIT, REPRESENTED ON BEHALF O F THE REVENUE AND MR. G.BASKAR, ADV., REPRESENTED ON BEHALF OF TH E ASSESSEE. ITA NO.901/CHNY/2019 :- 2 -: 3. IT WAS SUBMITTED BY THE LD.DR THAT THE ONLY ISSUE IN THE REVENUES APPEAL WAS AGAINST THE ACTION OF THE LD.CIT(A) IN A LLOWING THE ASSESSEES CLAIM OF DEDUCTION U/S.80IA OF THE ACT, WHICH HAD B EEN DISALLOWED BY THE AO IN RESPECT OF WIND MILL. IT WAS A SUBMISSION TH AT THE ASSESSEE COMPANY HAD TAKEN THE WIND MILL UNDERTAKING IS A GO ING CONCERN. THE AO HAD DISALLOWED THE ASSESSEES CLAIM OF DEDUCTION U/ S.80IA ON THE GROUND THAT THE TRANSFEROR COMPANY HAD TRANSFERRED THE MAC HINERY, ALONE, BEING THE WIND MILL AND CONSEQUENTLY, THE ASSESSEE HAD NO T COMPLIED WITH THE CONDITIONS SPECIFIED IN CLAUSE-(I) TO SEC.80IA(3) O F THE ACT AND THE ASSESSEE HAD ACQUIRED USED PLANT AND MACHINERY BEIN G THE WIND MILL, WHICH HAD BEEN USED BY THE TRANSFEROR COMPANY AND W DV HAS COME DOWN TO NEARLY ZERO. 4. IN REPLY, THE LD.AR SUBMITTED THAT THE ISSUE IN TH IS APPEAL IS SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF KAILASH WIND FARMS, TIRUPUR VS. THE ITO, IN ITA NO.425/CHNY/2018 DATED 09.08.2018, WHEREIN, THE CO- ORDINATE BENCH OF THIS TRIBUNAL HAD HELD THAT THE ASSESSEES CLAIM WA S THAT THE WIND MILL WAS PURCHASED BY THE ASSESSEE AS A GOING CONCERN AND DO ES NOT FORM A NEW UNDERTAKING, CONSEQUENTLY, THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S.80IA OF THE ACT IN RESPECT OF THE REMAINING PERIOD. IT WAS A SUBMISSION THAT THE LD.CIT(A) HAD FOLLOWED THE DECISION OF THE CO-ORDIN ATE BENCH OF THIS TRIBUNAL IN THE CASE OF KAILASH WIND FARMS, TIRUPUR VS. THE ITO. HE VEHEMENTLY SUPPORTED THE ORDER OF THE LD.CIT(A). ITA NO.901/CHNY/2019 :- 3 -: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. 6. AS IT IS NOTICED THAT THE ISSUES IN THIS APPEAL AR E SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBU NAL IN THE CASE OF KAILASH WIND FARMS, TIRUPUR VS. THE ITO AND AS THE REVENUE HAS NOT BEEN ABLE TO POINT OUT WITH ANY DECISION CONTRARY TO THE SAID DE CISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL, REFERRED TO SUPRA, AND AS T HE LD.CIT(A) HAS FOLLOWED THE JUDICIAL DISCIPLINE IN FOLLOWING THE D ECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF KAILASH WIND FARMS, TIRUPUR VS. THE ITO, WE DO NOT FIND ANY REASON TO INTERFERE WITH TH E ORDER OF THE LD.CIT(A). 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THE 08 TH DAY OF JULY, 2019 IN CHENNAI. SD/- SD/- ( ) ( INTURI RAMA RAO ) /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) /JUDICIAL MEMBER /CHENNAI, 3 /DATED: 08 TH JULY, 2019. TLN . +45 65 /COPY TO: 1. * /APPELLANT 4. 7 /CIT 2. +,* /RESPONDENT 5. 5 + /DR 3. 7 ( ) /CIT(A) 6. /GF