TMI Blog2013 (11) TMI 1733X X X X Extracts X X X X X X X X Extracts X X X X ..... brevity. 2. All the appeals of the Reven2 ue and the cross-objections of the assessee arise from a consolidated order of the CIT(A) dated 18.12.2012 for the captioned assessment years which, in-turn, has arisen from assessment orders passed by the Assessing Officer u/s 143(3) r.w.s. 153C of the Income Tax Act, 1961 (in short the Act ) for each of the assessment years. The sum and substance of the dispute in the captioned proceedings relates to the depreciation on the cost of Windmill. The Assessing Officer noticed that during the assessment year 2003-04, assessee had installed a Windmill costing of ₹ 4,65,00,000/-. On the entire cost of windmill, depreciation was claimed @ 80% on all assets excluding land. It was further noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll so as to be eligible for depreciation @ 80% and the balance 60% of the cost of civil work, etc. is held to be eligible for the depreciation @ 10%, being buildings/roads. Against the aforesaid decision of the CIT(A), Revenue as well as assessee are in appeal before us. 4. The Revenue has contested the partial relief allowed by the CIT(A) whereas the assessee by way of cross-objection No.3 has contested that the entire civil cost of ₹ 20,00,000/- be considered as an integral part of the cost of Windmill by applying the functional test and thus be allowed depreciation at the higher rate. 5. In this background, we have considered the rival submissions. It was a convergence of opinion between the assessee and the learned CIT(DR) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to ₹ 20,00,000/- which shows that it is a composite bill for foundation of Windmill, Plinth for Transformer, Windmill Control Room, Site Development and Internal Road Development, etc.. It is in this context, on being unable to decipher the exact cost of the civil foundation work for Windmill/Transformer, the learned CIT(A) has apportioned the cost between the buildings/roads and Windmill in the ratio of 60:40. The learned counsel vehemently pointed out that though separate costs were not enumerated by Suzlon Developers Private Limited who had undertaken the execution of work, yet the items of civil work on account of buildings/roads was minimal and therefore apportionment made by the CIT(A) was unjustified. The learned counsel fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .w.s. 153C as void abinitio. Hence it is prayed that notice issued under section 153C be held as bad in law and hence the assessment made under section 143(3) r.w.s. 153C be treated as null and void abinition. 2. Without prejudice to Ground No. 1 the addition made by learned Assessing Officer by disallowing claim of depreciation @ 80% on civil work when such disallowance is not made on the basis of any material seized during the course of search and hence addition made under section 153C be deleted as the addition made on this account is beyond the scope of sec. 153A. they have not been pressed at the time of hearing and accordingly dismissed as withdrawn. 10. Accordingly, the Cross-objection is partly allowed. 11. The aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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