Friends Salt Works & Allied Inds., Gandhidham V. The Dy. Commissioner of Income Tax, Central Circle-2(3), Ahmedabad

MA 4/RJT/2023

AI Insights

The case involves Friends Salt Works & Allied Industries, the appellant, contesting an ITAT order that dismissed their cross objections regarding depreciation on leasehold charges for land used by a windmill. The ITAT had previously relied on a Pune decision, which the assessee argued was not applicable to their case. They sought a recall of the ITAT's order, claiming it overlooked relevant decisions from the Bombay High Court and a Co-ordinate Bench in Rajkot. However, the ITAT found that the decisions cited by the assessee were based on different facts and thus not applicable to the current case, leading to the dismissal of the Miscellaneous Applications.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124071 (ITAT-RAJKOT)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-11-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-10-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 05-03-2023
• Other Referred Cases: ACIT vs. Poonawala Finvest & Agro (P.) Ltd. (2009) 27 SOT 47 (Pune) URO, Bombay High Court case of 69 taxman.com 20 (Bombay), Co-ordinate Bench Rajkot in ITA 442-443/Rjt/2016 dated 15-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJEEV RANJAN
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH VIRTUAL COURT] Before: Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member Friends Salt Works & Allied Industries, Maitri Bh avan, Sector No. 8, Gandhidh am- Kutchh - 37020 1 PAN: AACF K190 6F (Appellant) Vs The Dy. CIT, Circle-2(3), Ah med abad-3800 14 (Resp ondent) Asses see by : Shri K. C. Thacker, A. R. Revenue by : Shri S anjeev Ranjan, Sr. D. R. Date of hearing : 13-10 -2023 Date of pronouncement : 07-11 -2023 आदेश/ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- These are the Miscellaneous Applications filed by the assessee against the order of ITAT in ITA Nos. CO Nos.192, 193, 194 & 195/Rjt/2016 vide order dated 12-08-2022. M.A. Nos. 03,04,05 & 06/Rjt/2023 (In CO Nos.192, 193, 194 & 195/Rjt/2016) AYs 2009-10, 2010-11, 2011-12, 2012-13 & 2013-14 MA Nos. 3, 4, 5 & 6 (In CO Nos.192 to 195/Rjt/2016) A.Ys. 2009-10 to 2012-13 Page No Friends Salt Works & Allied Industries vs. Dy. CIT 2 2. Vide the present Miscellaneous Application, the assessee has sought for partial recall of order wherein it was submitted by the assessee that the ITAT while dismissing the cross objection filed by the assessee with respect to depreciation on providing easy and free excess and keeping the area vacant surrounding the lease land dismissed the cross objection filed by the assessee by placing reliance on the decision passed by the ITAT Pune in the case of ACIT vs. Poonawala Finvest & Agro (P.) Ltd. (2009) 27 SOT 47 (Pune) URO. It has been submitted by the assessee that the aforesaid order passed by ITAT is erroneous since it has omitted to consider the decision of Bombay High Court in the case of 69 taxman.com 20 (Bombay) and also the decision of Co-ordinate Bench Rajkot in ITA 442-443/Rjt/2016 dated 15-02- 2018 which were cited by the respondent during the course of hearing. Accordingly, it was submitted that since the aforesaid decision was passed by ITAT without considering the decision cited by the assessee, the order passed by the ITAT in the aforesaid years is liable to be partially recalled to that extent. 3. In the instant case, we observe that the decision of Bombay High Court on which reliance was placed by the assessee was rendered on a different set of facts wherein the assessee had itself built certain structure on which depreciation was claimed whereas in the instant facts, the ld. CIT(A) while analyzing the facts of the assessee’s case had clearly observed that the aforesaid payments on which depreciation was claimed was only towards allowing the “use” of approach road to the wind mill, which is prepared by M/s. Suzlan on land taken on lease by M/s. Suzlan. Therefore, in the instant facts, it was observed that neither the assets belonged to the assessee nor MA Nos. 3, 4, 5 & 6 (In CO Nos.192 to 195/Rjt/2016) A.Ys. 2009-10 to 2012-13 Page No Friends Salt Works & Allied Industries vs. Dy. CIT 3 does the sum of payment represent payment towards lease rent. While passing the order, the ITAT while dismissing the cross objection filed by the assessee has made a factual observation that the assessee has not been able to demonstrate the nexus between lease hold charges paid to M/s. Suzlon Ltd. towards access to road and operation of the wind mill per se. It was on the specific facts of the assessee’s case that the cross objection of the assessee was dismissed. Therefore, while passing the order, the ITAT took into consideration the specific facts of the assessee’s case and it was observed that the assets in question did not belong to the assessee in the first instance and further, the assessee has not been able to demonstrate any nexus between the lease hold charges paid to M/s. Suzlan Limited and operation of wind mill and therefore it was on these specific facts that the cross objections filed by the assessee were dismissed. Therefore, we observe that since the orders on which reliance was sought to be placed by the assessee were rendered on their own set of facts and the present decision has been rendered by ITAT in respect of different set of facts where depreciation was claimed by the assessee on lease hold charges which was disallowed, we observe that there is no mistake in the order of ITAT in not referring to the decisions which have rendered on a different set of facts. Accordingly, looking into the order passed by ITAT and the fact that the decision has been rendered by the ITAT on the basis of assessee’s own specific set of facts which cannot be equated with set of facts of other judicial precedents on which reliance was sought to be placed, we are of the considered view that there is no apparent mistake in the order passed by ITAT while rendering the decision, which was rendered based on the specific facts of the assessee’s case. Notably, the assessee’s cross objections have been by primarily taking MA Nos. 3, 4, 5 & 6 (In CO Nos.192 to 195/Rjt/2016) A.Ys. 2009-10 to 2012-13 Page No Friends Salt Works & Allied Industries vs. Dy. CIT 4 into consideration assessee’s particular set of facts and only reference has been made to Pune ITAT decision. 4. In the result, the Miscellaneous Applications filed by the assessee are hereby dismissed. Order pronounced in the open court on 07-11-2023 Sd/- Sd/- (WASEEM AHMED) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 07/11/2023 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order, Assistant Registrar, Income Tax Appellate Tribunal, Rajkot