TMI Blog2012 (9) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... he end of the FY i.e. 31.03.2004 - Held that:- Following the decision in case of Orchid Chemicals (2012 (3) TMI 551 - ITAT CHENNAI), it is beyond any dispute that it has been officially recognized by the competent authority that the commissioning of the generators was completed in the impugned assessment year itself. This is the condition which is to be satisfied to claim depreciation on the windmill. Once the said condition is satisfied, the question of actual generation of electricity, perhaps in the next previous year, does not defeat the claim of the assesse, as the assessee is entitled for depreciation on commissioning itself. Therefore, assessee is entitled for depreciation. Appeal decides in favour of assessee. - ITA No.1571/Mds/2008 & ITA No.1652/Mds/2008 - - - Dated:- 14-6-2012 - Dr. O.K. NARAYANAN, AND SHRI VIKAS AWASTHY, JJ. Assessee by : Mr. R.Kumar, Advocate Revenue by : Ms. Anupama Shukla, IRS, CIT DR O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER: The present set of appeals i.e. ITA Nos. 1571/Mds/2008 1652/Mds/2008 relevant to the assessment year have been filed by the assessee and Revenue respectively impugning the order of the CIT(A), Tiru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore withdrawing deduction under section 80HHC. Similarly for grounds of appeal no.5 and 9, the counsel submitted that the CIT(A) has committed error in not allowing deduction under section 80HHC and on account of DEPB receipts. The counsel further prayed for remitting these issues back to the Assessing Officer for model computation. 4. The counsel in support of ground no.6 to 8 contended that apart from the export business, the assessee has also installed windmill which is a separate activity. The assessee was maintaining separate books of account. There are separate divisions for export business and activity relating to electricity generation by windmills. He submitted that since the assessee is maintaining separate accounts for export business and domestic business, the deduction cannot be granted on the basis of total turnover of the business of the assessee. The assessee is entitled for deduction fully on export profits. In order to support his contentions, he relied on the judgement of the jurisdictional High Court in the cases of i) CIT Vs. M.Gani and Co., 301 ITR 38 ii) CIT Vs. Rathore Brothers, 254 ITR 656 iii) CIT Vs. Macmillan India Ltd., 295 ITR 67 iv) CIT Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order and book, the sales tax liability relating to March, 2003 is Rs.69,371/-. However, the Assessing Officer had wrongly disallowed Rs. 56,034/- only. The CIT(A) has rectified the mistake while confirming the findings of the Assessing Officer on the issue. Therefore, ground no.3 of the appeal is dismissed. 8. As regards ground nos. 4, 5 9 relating to deduction under section 80HHC and DEPB receipts are concerned, detailed facts for deciding the issue are not forthcoming from the order of the CIT(A). In the interest of justice, we deem it appropriate to remit the matter back to the Assessing Officer for model computation. 9. It is a well settled law that if the assessee is maintaining separate books of account for export business and domestic business, the assessee is entitled for full deduction on export profits. The CIT(A) has erred in holding that the deduction u/s.80HHC is to be allowed only after working out gross total income of the appellant/assessee firm. The assessee has two separate business divisions. For both the divisions separate books of accounts are being maintained. In the return of income, income from the two divisions is shown separately. Both the div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in the relevant previous year, the assessee is entitled to claim benefit of depreciation. Even trial run of an asset would fall within the ambit of term used for the purpose of business. Moreover, the assessee cannot be denied the benefit of depreciation on the ground that the asset was used for a very short duration. 11. We find that the case of the assessee is squarely covered by the decision of the co-ordinate Bench of the Tribunal in the case of M/s. Orchid Chemicals (supra), wherein it has been held as under:- 6. The Hon ble High Court of Madras had considered a similar issue in the case of ACIT v. Kences Foundation Pvt. Ltd. (289 ITR 509). In that case, the assesse had claimed 100% depreciation with reference to the investment in the windmill which got commissioned on September 30, 1995, as certified by the State Electricity Board. The Tribunal accepted the contention of the assessee that it was entitled for 100% depreciation for the assessment year 1995-96. The Revenue took up the matter before the Hon ble High Court with a question of law that whether the Tribunal was right in allowing 100% depreciation even if it held that the production started from 30th Sept.,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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