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2014 (9) TMI 279 - ITAT PUNEReconsideration of addition of depreciation of windmills – Rate of depreciation to be 10% or not – Held that:- Following the decision in DCIT Vs. Aminity Developers and Builders [2014 (9) TMI 211 - ITAT PUNE] - cost on the foundation of the wind mill is eligible for the depreciation at the rate 180% or the rate which is applicable to the wind mill as it is integral part of cost of wind mill erection - Same way, the cost for commission and erection cannot be said to be separate from the wind mill as it is directly related to the functioning of wind mill - CIT(A) has rightly allowed the depreciation on the pro rata basis on the cost of foundation to the extent of the civil work – the order of the CIT(A) is upheld – Decided against assessee. Addition u/s 40A(2)(b) deleted – Failure to justify and establish the expenses – Held that:- The assessee has claimed payment of commission to the Directors on the basis of a resolution passed in the Extraordinary General Body Meeting - CIT(A) deleted the addition on the ground that the provisions of section 40A(2) are not attracted when both payer and payee fall in the same tax bracket - the Directors have rendered services and the commission has been paid on the basis of resolution passed at the EGM - the Assessee as well as the Directors fall under the same tax rate and there is no attempt to evade tax – thus, the order of the CIT(A) is upheld – Decided against Revenue. Addition u/s 40A(2)(b) deleted - Admission of new evidences but AO did not get the opportunity to examine as provided under Sub-Rule (3) of Rule 46A – Held that:- The Breakup of the expenses includes payment of Excise Duty, Education cess, Secondary education cess and VAT of which are paid to Govt. Departments - it is highly improbable that any person will make any tax planning to convert an amount by paying tax and various other duties to Govt. amounting to more than ₹ 10 lakhs - evasion of tax is ruled out – thus, the order of the CIT(A) is upheld – Decided against revenue. Addition u/s 43B – Payment of sale tax made – Admission of additional evidence - Held that:- CIT(A) has given ample opportunity to the AO to comment on the admissibility or otherwise of the additional ground before him - the AO had not availed of that opportunity - raising this ground that AO was not given any opportunity is not justified - CIT(A) while allowing the claim of deduction u/s.43B has also decided the issue on merit and the Revenue has no grievance about the allowability of the same as no ground for that has been taken - The grievance was only for admission of the additional ground - In view of the detailed reasoning given by the CIT(A) for admission of the additional ground as well as the decision on merit, it was found that there was no infirmity – Decided against revenue.
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