Western Precicast Pvt. Ltd., Sangli V. Joint Commissioner of Income-tax,

MA 39/PUN/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3342 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 18-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHTHA TIWARI
• Keywords: Depreciation; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#$ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM % / MA NO. 39/PN/2014 (ARISING OUT OF ITA NO. 1495/PN/2011) #% & '& / ASSESSMENT YEAR : 2008-09 M/S. WESTERN PRECICAST PVT. LTD., GAT NO. 170, NEAR KUPWAD MIDC, SAVALI, TAL.-MIRAJ, SANGLI . / APPELLANT PAN : AAACW3853C (% V/S. JOINT COMMISSIONER OF INCOME TAX, RANGE 1, SANGLI . / RESPONDENT / APPELLANT BY : SHRI M.P. MACHAVE / DEPARTMENT BY : MS. NISHTHA TIWARI ) DATE OF HEARING :26-06-2015 / DATE OF PRONOUNCEMENT :22-07-2015 ! ORDER PER VIKAS AWASTHY, JM : THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE FOR RECALLING THE ORDER OF TRIBUNAL IN ITA NO. 1495/PN/2011 FOR ASSESSMENT YEAR 2008-09 DECIDED ON 30-01-2013. 2. SHRI M.P. MACHAVE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE APPEAL OF THE ASSESSEE WAS ALLOWED BY THE TRIBU NAL. THE ISSUE IN 2 MA NO. 39/PN/2014, A.Y. 2008-09 APPEAL WAS WITH RESPECT TO DEPRECIATION ON WINDMILL. THE AS SESSEE HAD PURCHASED AND INSTALLED WINDMILL IN FINANCIAL YEAR 2005-06 (ASSE SSMENT YEAR 2006-07). DEPRECIATION @ 80% WAS ALLOWED. THE ASSE SSEE CLAIMED HALF OF 80% DEPRECIATION AS THE WINDMILL WAS INSTALLED IN SECO ND HALF OF THE YEAR. CONSEQUENTLY, THE ASSESSING OFFICER SHOULD HAV E ALLOWED 80% DEPRECIATION ON W.D.V. AS ON 01-04-2006 FOR ASSESSMENT Y EAR 2007-08 AND SUBSEQUENT ASSESSMENT YEARS. THE ISSUE RAISED IN A PPEAL WRONGLY GOT MIXED UP AND THE TRIBUNAL FOLLOWING ITS ORDER IN APPEAL BY REVENUE IN ASSESSEES CASE IN ITA NO. 890/PN/2001 FOR ASSESSMENT YEAR 2007-08 DECIDED ON 31-12-2012 GRANTED RELIEF TO THE ASSESSEE. THE ISSUE REGARDING DEPRECIATION ON WINDMILL NEEDS TO BE ADJUDICATED AGAIN AS THE SAME HAS NOT BEEN PROPERLY ADJUDICATED. 3. MS. NISHTHA TIWARI APPEARING ON BEHALF OF THE DEPARTMEN T SUBMITTED THAT THE REVENUE HAS NEITHER FILED APPEAL AGAINS T THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), KOLHAPUR DATED 17-09- 2011 NOR AGAINST THE ORDER OF TRIBUNAL IN ITA NO. 1495/PN/2011 DEC IDED ON 30-01-2013 DUE TO LOW TAX EFFECT. THE LD. DR FURTHER SUB MITTED THAT THE REVENUE HAS NO OBJECTION IN RECALLING OF THE ORDER IN ITA NO. 1495/PN/2011 DATED 30-01-2013. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BE LOW. THE ASSESSEE HAS PRAYED FOR RECALLING THE ORDER DATED 30-01-2013 IN I TA NO. 1495/PN/2011 ON THE GROUND THAT THE TRIBUNAL HAS NOT PROPERLY ADJUDICATED THE ISSUE RELATING TO DEPRECIATION ON WINDMILL ALT HOUGH THE APPEAL OF THE ASSESSEE WAS ALLOWED. THE ISSUE RAISED BY T HE ASSESSEE IN APPEAL AND DECIDED BY THE TRIBUNAL VIDE ORDER DATED 30- 01-2013 ARE NOT 3 MA NO. 39/PN/2014, A.Y. 2008-09 CONGRUENT. WE HAVE PERUSED THE ORDER OF TRIBUNAL SOUG HT TO BE RECALLED. THE TRIBUNAL WHILE DECIDING THE ISSUE OF DEPRECIATION HAS PLA CED RELIANCE ON THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR ASSE SSMENT YEAR 2007- 08. THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 20 07-08 I.E. ITA NO. 814/PN/2011 AS WELL AS APPEAL OF THE REVENUE FOR ASSESSM ENT YEAR 2007-08 IN ITA NO. 890/PN/2011 BOTH ARE SUB-JUDICE. 5. THE APPEAL OF THE REVENUE I.E. ITA NO. 890/PN/2011 WA S DISMISSED BY THE TRIBUNAL ON 31-12-2012. THE SAID ORDER OF THE T RIBUNAL HAS NOW BEEN RECALLED IN MA NO. 93/PN/2014 BY THE ORDER OF EVEN DAY. 6. IN THE BACKDROP OF THE FACTS NARRATED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT ORDER IN ITA NO. 1495/PN/2011 DATE D 30-01-2013 NEEDS TO BE RECALLED. THE MISCELLANEOUS APPLICATION OF THE A SSESSEE IS ALLOWED. THE ORDER OF TRIBUNAL IN ITA NO. 1495/PN/2011 FOR ASSESSMENT YEAR 2008-09 DATED 30-01-2013 IS RECALLED AND THE APP EAL IS RESTORED TO ITS ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO LIST THIS APPEAL ALONG WITH ITA NO. 814/PN/2014 AND ITA NO. 890/PN/2011 FOR ASSESSMENT YE AR 2007-08 ON 07-09-2015. ORDER PRONOUNCED ON WEDNESDAY THE 22 ND DAY OF JULY, 2015 AT PUNE SD/- SD/- ( ' ' #$ / R.K. PANDA) ( % & / VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER ! PUNE; '# /DATED : 22 ND JULY, 2015 RK/PS 4 MA NO. 39/PN/2014, A.Y. 2008-09 *+,#-. / '- ! COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) * / THE CIT(A), KOLHAPUR 4. ( /THE CIT-I/II, KOLHAPUR 5. %+, --./ 0 ./ 0 1 2 34 0 ! 560 78980 1:2 :;<=>0 ?@<; 6. ,$A B ! GUARD FILE. // % - //TRUE COPY// *% / BY ORDER, #%0 1) PRIVATE SECRETARY, ' /ITAT, PUNE