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2013 (6) TMI 691 - AT - Income TaxAddition made u/s 36(1 )(ii) - CIT(A) has deleted the contentions additions - Held that:- It is not the case of the AO that the assessee has diverted the funds borrowed, on interest, for the purpose of business to his son. Rather, he has accepted this that no such borrowed fund has been advanced to his son. Therefore, nexus between the borrowed fund and the advanced fund has neither been the issue nor the AO it has been alleged by the AO. We have found that the decision of Abhishek Industries [2006 (8) TMI 123 - PUNJAB AND HARYANA High Court] has been discussed and distinguished in the later judgment passed in M/s. Mark Auto Industries [2011 (4) TMI 505 - PUNJAB AND HARYANA HIGH COURT]. We have found force in the reasoning of ld. CIT(A) that the facts of Abhishek Industries are different in as much as that it is a case of Corporate entity wherein the share holders are not at liberty to withdraw the capital and the entire funds of the corporate entity are in a way like a water tight compartment, as there is nothing like business and perusal aspects. Otherwise also in the judicial discipline, the later judgment on the same issue which has discussed the earlier judgment becomes binding in nature. Accordingly, Ld. CIT(A) has passed a well reasoned order, wherein, he has explained as to how the decision of Abhishek Industries would not apply - Decided against revenue. Disallowance u/s 14A - expenses incurred on investments on which exempt income arises CIT(A) has deleted the additions - Held that:- This ground is wrongly framed. The ld. CIT(A) has not deleted the entire disallowance of ₹ 5,02,628/- as has been pleaded in Ground No. (2), but he has sustained it at ₹ 4,41,272/-, instead, as has been claimed in the revised working by the assessee. Accordingly, we don't find any merit in this ground as well. The decision of Goetz India [2006 (3) TMI 75 - SUPREME Court] bounds the AO only, and, otherwise also it is not the case of fresh claim made. We find no infirmity in the reasoning of ld. CIT(A) and, in the interest of justice, we confirm his finding. - Decided against revenue. Wind Mill and the capitalization of bills of infrastructure evacuation and transmission lines under the head of Wind Mill eligible for depreciation of 80% - right to use - Held that:- No error in the impugned finding of Ld. CIT(A). We have tried and understood that the Income-tax Rules provide for allowance of depreciation at the rate of 80% on 'renewable energy devices' like windmills and any other specially designed devices, which run on wind mills. The assessee has installed a 'wind farm project' and has included it in the windmill block eligible for depreciation @80%. A windmill is a machine which uses' energy of wind' to rotate adjustable vanes 'sails' which generate electricity. AO has misdirected himself and without understanding this peculiar circumstances has gone on hyper pedantic route. The assessee has made one-time payment by way of contribution for using the PE facilities which are owned by the EB, but the assessee has acquired a 'right to use this facility' which is owned as a right so the assessee is the owner of that 'right' in the facilities. Thus, it can be safely stated that the assessee is using the system as real owner alight he is not owner on papers. In the regard we draw support from the decision of CIT v. Fazilka Dabawali Transport Co. (P.) Ltd. [2004 (8) TMI 95 - PUNJAB AND HARYANA High Court] and the case of CIT v. Smt. A SivaKami [2009 (11) TMI 127 - MADRAS HIGH COURT]. As the appellant does not own the asset on paper but it is using the same as the owner to the extent he has made contribution for same. Further, the revenue realized from the operation of wind mill/power evacuation facility has been credited 'income. In the circumstances the assessee not being owner of the power evacuation facility in its books of accounts cannot be taken to be the basis to disallow the claim of depreciation.' Accordingly, we uphold the order of ld. CIT(A). Any part of plant which is an integral part of capital asset which is legible for higher depreciation even if that other part is eligible, otherwise, for normal depreciation, it became entitled to higher rate of depreciation. For the above conclusion we rely on the decisions of (i) CIT v. Mahanagar Telephone Nigam Ltd. [2001 (10) TMI 69 - DELHI High Court] and (ii) CIT v. Delhi Airport Service [2001 (9) TMI 39 - DELHI High Court] interalia. Decided against revenue.
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