Aurangabad Sales & Services, Aurangabad V. ACIT, Aurangabad

MA 85/PUN/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9884 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 27-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINITA MENON
• Keywords: Depreciation
• Section: 2

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NOS. MA NO.85/PN/2012 ARISING OUT OF ITA 1460/PN/2009 (ASSESSMENT YEAR 2006-07) AURANGABAD SALES & SERVICES, GUT NO.65, VILLAGE PANGRA CHITEGAON, TALUQ PAITHAN, AURANGABAD. .. APPLICANT PAN NO. AAEFA 0484C VS. ACIT, CIRCLE-1, AURANGABAD. .. RESPONDENT APPLICANT BY : SRI SMT. DEEPA KHARE DEPARTMENT BY : SMT. VINITA MENON DATE OF HEARING : 14-12-2012 DATE OF PRONOUNCEMENT : 11-01-2013 ORDER PER R.K. PANDA, AM: THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECTIFY CERTAIN MISTAKES WHICH HAS CREP T IN THE ORDER. 2. BRIEF FACTS OF THE CASE ARE THAT DURING THE CONC ERNED FINANCIAL YEAR THE ASSESSEE INSTALLED ONE 250KW CAPACITY WIND ELECTRIC GENERATOR AT VILLAGE KEELAVEERANAM, TIRUNEVELI, TAMILNADU AND CLAIMED HI GHER DEPRECIATION ON SUCH WIND MILL WHICH WAS DENIED BY THE AO. ON APPE AL THE LEARNED CIT(A) ALLOWED THE SAME. WHEN THE REVENUE CHALLENGED THE ORDER OF THE CIT(A), THE TRIBUNAL FOLLOWING THE DECISION IN THE CASE OF POONAWALA FINVEST AGRO PVT. LTD. VS. ACIT VIDE ITA NO.188/PN/2006 ORDER DA TED 26-06-2008 HELD THAT THE ASSESSEE IS NOT ENTITLED TO HIGHER RATES O F DEPRECIATION FOR CIVIL CONSTRUCTION. SO FAR AS THE HIGHER RATE OF DEPREC IATION ON CONSULTANCY CHARGES THE TRIBUNAL HELD AS UNDER : 2 8.2 SO FAR AS THE CLAIM OF THE LEARNED COUNSEL FOR THE ASSESSEE REGARDING ALLOWABILITY OF CONSULTANCY CHARGES PAID TO TAMILNA DU ELECTRICITY BOARD, IS CONCERNED, WE FIND FROM THE DETAILS THAT THE SAME I S NOT VERIFIABLE. FROM THE AMOUNT PAID TO THE CONTRACTOR M/S. SHRIRAM ECP PVT. LTD. AMOUNTING TO RS. 10,50,000/- IT IS SEEN THAT THE SAME IS TOWARDS IN FRASTRUCTURE CHARGE FOR WIND ELECTRICITY GENERATING UNIT AS WELL AS CONSULT ANCY CHARGES PAYABLE TO TAMILNADU ELECTRICITY BOARD. IN OUR OPINION ONLY T HE AMOUNT PAID TO TAMILNADU ELECTRICITY BOARD TOWARDS CONSULTANCY CHA RGES, AT BEST, CAN FORM A PART OF THE COST OF THE WIND MILL. WE, THEREFORE , DEEM IT FIT AND PROPER TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRE CTION TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE WITH EVIDENCE TO HI S SATISFACTION REGARDING THE AMOUNT PAID TO TAMILNADU ELECTRICITY BOARD TOWARDS CONSULTANCY CHARGES FOR THE WINDMILL SO AS TO CONSIDER THE SAME AS PART OF THE WIND MILL. THE ASSESSEE IS ENTITLED TO HIGHER RATE OF DEPRECIATION ON THE AMOUNT OF CONSULTANCY CHARGES PAID TO TAMILNADU ELECTRICITY B OARD. FOR THE REMAINING PORTION, IT WILL FORM A PART OF THE CIVIL CONSTRUCT ION AND THE ASSESSEE IS NOT ENTITLED TO HIGHER RATE OF DEPRECIATION. ACCORDING LY, THE GROUNDS RAISED BY THE REVENUE ARE PARTLY-ALLOWED FOR STATISTICAL PURP OSES. 3. NOW THE ASSESSEE THROUGH THIS MISCELLANEOUS APPL ICATION HAS STATED THAT THE ENTIRE CONSULTANCY CHARGES ARE PAID FOR IN STALLATION OF THE WIND MILL AND IT INCLUDES PAYMENTS MADE TO TAMILNADU ELECTRIC ITY BOARD AND NO CONSULTANCY CHARGES ARE RELATED TO CIVIL CONSTRUCTI ON. IT WAS ACCORDINGLY SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE T HAT THE ORDER OF THE TRIBUNAL BE MODIFIED ACCORDINGLY. 4. THE LEARNED DR ON THE OTHER HAND SUBMITTED THAT SINCE THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL, THER EFORE, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AMOUNTS TO A REQU EST TO THE TRIBUNAL TO 3 REVIEW ITS OWN ORDER WHICH IS NOT PERMISSIBLE. THE REFORE, THE SAME SHOULD BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES. WE HAVE ALREADY HELD AT PARA 8.2 OF THE ORDER THAT THE ALLOWABILITY OF CONSULTANCY CHARGES PAID TO TAMILNADU ELECTRICITY B OARD IS NOT VERIFIABLE FROM THE DETAILS FURNISHED BY THE ASSESSEE FOR WHICH THE ISSUE WAS RESTORED TO THE FILE OF THE AO. IT IS THE SUBMISSION OF THE LEARNE D COUNSEL FOR THE ASSESSEE THAT NO PART OF THE CONSULTANCY CHARGES IS TOWARDS CIVIL CONSTRUCTION. SINCE THIS FACT WAS ALSO STATED BEFORE THE LOWER AUTHORIT IES, THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH REQUIRES RECTIFICATION. ACCORDINGLY, WE MODI FY OUR ORDER AND PARA 8.2 OF THE ORDER SHALL BE READ AS UNDER : 8.2 SO FAR AS THE CLAIM OF THE LEARNED COUNSEL FOR THE ASSESSEE REGARDING ALLOWABILITY OF CONSULTANCY CHARGES PAID IS CONCERN ED, WE FIND FROM THE DETAILS THAT THE SAME IS NOT VERIFIABLE. FROM THE AMOUNT PAID TO THE CONTRACTOR M/S. SHRIRAM ECP PVT. LTD. AMOUNTING TO RS. 10,50,000/- IT IS SEEN THAT THE SAME IS TOWARDS INFRASTRUCTURE CHARGE FOR WIND ELECTRICITY GENERATING UNIT AS WELL AS CONSULTANCY CHARGES PAYA BLE TO TAMILNADU ELECTRICITY BOARD. IN OUR OPINION ONLY THE AMOUNT PAID TO TOWARDS CONSULTANCY CHARGES FOR SETTING UP OF THE WIND WILL , AT BEST, CAN FORM A PART OF THE COST OF THE WIND MILL AND ANY CONSULTANCY CH ARGES PAID TOWARDS CIVIL CONSTRUCTION WILL NOT BE ALLOWED FOR HIGHER DEPRECI ATION. WE, THEREFORE, DEEM IT FIT AND PROPER TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE WITH EVIDENCE TO HIS SATISFACTION REGARDING THE AMOUNT PAID TOWAR DS CONSULTANCY CHARGES FOR THE WINDMILL SO AS TO CONSIDER THE SAME AS PART OF THE WIND MILL ON WHICH THE ASSESSEE IS ENTITLED TO HIGHER RATE OF DE PRECIATION. FOR THE 4 REMAINING PORTION, IT WILL FORM A PART OF THE CIVIL CONSTRUCTION AND THE ASSESSEE IS NOT ENTITLED TO HIGHER RATE OF DEPRECIA TION. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE PARTLY-ALLOWED FO R STATISTICAL PURPOSES. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION APP EAL FILED BY THE ASSESSEE IS ALLOWED IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 11 TH DAY OF JANUARY 2013 SD/- SD/- (R.S. PADVEKAR) (R.K. PAN DA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: THE 11 TH JANUARY 2013 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A), AURANGABAD 4. CIT, AURANGABAD 5. THE D.R, B PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE