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2014 (9) TMI 279 - AT - Income TaxReconsideration 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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