TMI Blog2014 (8) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... iation disallowed which is liable to be deleted as it has already been held in assessee’s own case for the earlier assessment year - depreciation on foundation work and transformer plinth and depreciation on installation and electrical lines etc. is held to be allowable at which rate depreciation is allowable on wind mill – Decided against Revenue. - ITA No. 288/JU/2014 - - - Dated:- 12-8-2014 - Shri Hari Om Maratha And Shri N. K. Saini,JJ. For the Petitioner : None For the Respondent : Shri N.A. Joshi, DR ORDER Per Hari Om Maratha, J.M. This appeal by the revenue is directed against the order of the CIT(A), Udaipur dated 17.02.2011 pertaining to A.Y 2010-11. 2. We have heard the submissions of the ld. D.R and have carefully perused the relevant material on record as nobody came to represent the respondent's case and also no application for adjournment was received. It was also noticed that both the issues involved in this appeal stand covered in favour of the assessee by the order of the Tribunal rendered in this very assessee's case. Hence, we have proceeded ex parte qua the assessee. 3. First ground pertains to claim of deduction u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made. From reading of sub-s. (1), it is clear that it provides that where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprises from any business referred to in sub-s. (4) i.e. referred to as the eligible business, there shall, in accordance with and subject to the provisions of the section, be allowed, in computing the total income of the assessee, a deduction of an amount equal to 100% of the profits and gains derived from such business for ten consecutive assessment years. Deduction is given to eligible business and the same is defined in sub-s. (4). Sub- s.(2)provides option to the assessee to choose ten consecutive assessment years out of 15 years. Option has to be exercised. If it is not exercised, the assessee will not be getting the benefit. Fifteen years is outer limit and the same is beginning from the year in which the undertaking or the enterprise develops and begins to operate any infrastructure activity etc. Sub-s. (5) deals with quantum 5 of deduction for an eligible bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady absorbed in the earlier years. There is a positive profit during the year. In view of this, there is no question of setting off notionally carried forward unabsorbed depreciation or loss against the profits of the unit and the assessee is entitled to claim deduction u/s 80IA on the current assessment year on the current year profit. That Id. A.O. While placing reliance on so many cases as mentioned in the order and discussed therein, it is submitted that the cases discussed above are either not squarely relevant and further the cases pertains prior to amendment to sec. 80 IA by Finance Act, 1999. The case relied upon by Id. A.O. i.e. ACIT V/s Goldmine Share Finance P. Ltd. (supra) has duly been considered by Hon'ble Madras high court while deciding case of Velayudhaswamy Spinning Mills P. Ltd. V/s ACIT concurred with the decision of CIT V/s Mewar Oil General Mills Ltd. 271 ITR 311 (Raj.) of Jurisdictional high court. In this regard, we wish to draw your attention to the decision of the Madras High Court in case of Velayudhaswamy Spinning Mills Pvt. Ltd., Vs. ACIT, (2010) 38 DTR 57, 231 CTR (Mad) 368 wherein the fact of the case are identical to the assessee' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low deduction u/s 80IA claimed by the assessee and delete the addition made on this account. I have considered the submissions of the appellant as well as the findings of the Ld. AO. Keeping into consideration the various case laws of the higher appellate authorities and the Hon'ble Courts I incline to agree with the contention of the appellant that on the facts and circumstances of the case the Ld. AO is not justified in disallowing the claim of deduction u/s 80IA of ₹ 52,86,966/- in respect of company's Jaisalmer wind power unit and the disallowance of claim u/s 80IA is deleted. Further, it is observed that in the case of Madhav Marble Granites Ltd., my Ld. predecessor has also allowed the claim of deduction u/s 80IA in 112/IT/Udr/2009- 10 in AY 2007-08 which has been confirmed by the Hon'ble Jurisdiction; ITAT vide their order in ITA NO. 390 200 /Jodh/2011 2013 respectively for AYrs. 2007-08 2008- 09. The facts and circumstances of the case of the appellant are identical to the facts and circumstances of the case of M/s Madhav Marble Granites Ltd. Keeping into entirety of the case respectfully following the decisions mentioned above I have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the above grounds of appeal. During the course of appellate proceeding the Ld. AR submitted as under : Ground No. 2 3 : Depreciation on wind mill In this regard it is submitted that the case was discussed in detail in assessee's case during the appellate proceeding for the asst, year 2008-2009 and was has allowed in appeal No. 72/IT/UDR/2010-11 vide order dt. 28/02/2012, in which Id. Commissioner of Income Tax(Appeals), Udaipur has held on page 12 that depreciation on foundation work and transformer plinth and depreciation on installation and electrical lines etc is held to be allowable at which rate depreciation is allowable on wind mill and therefore disallowance of depreciation made by A.O. on the above items is deleted and this ground of appeal is allowed. Copy of order dt. 28/02/2012 is enclosed. Further against the order for the A.Y. 2008- 09 department filed appeal before H'ble ITAT and same was dismissed by the H'ble ITAT, Jodhpur Bench, Jodhpur vide Appeal No. ITA/193/JU/2012 order dt. 14/12/2012. Copy of the same is enclosed. Therefore, our above case is squarely covered by appellant's case for the asst year 2008-2009 and reque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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