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2015 (10) TMI 2106 - ITAT KOLKATA

2015 (10) TMI 2106 - ITAT KOLKATA - TMI - Additional depreciation on wind mill - assessee had made a claim in the revised computation of income statement filed before completion of assessment proceedings - Held that:- Admittedly, the assessee had missed the bus in the opportunity provided to him by the statute by filing the revised return within the time limit prescribed u/s 139(5) of the Act. However, that does not prevent the assessee from making its legitimate claims and its doors are not com .....

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in that “he can do what the ITO can do and can also direct him to do what he failed to do. “ . The question of limitation on the ld. AO would have no relevance in view of the wider powers of the First Appellate Authority. Reliance in this regard is placed on the decision of the Hon’ble Allahabad High Court in the case of Smt. Raja Rani Gulati vs CIT reported in (2011 (10) TMI 78 - Allahabad High Court ).

We also find that the veracity of the claim of additional depreciation on wind mi .....

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the case of CIT vs VTM Limited [2009 (9) TMI 35 - MADRAS HIGH COURT]. Thus we allow the claim of additional depreciation on wind mill to the assessee - Decided in favour of assessee. - ITA No.272/Kol/2013 - Dated:- 31-8-2015 - Shri Mahavir Singh and Shri M.Balaganesh, JJ. For The Appellant : Shri Debasish Roy,JCIT.Sr.DR For The Respondent : Shri Vikash Singhal, FCA ORDER Per Shri M. Balaganesh, AM This appeal of the revenue arises out of the order of ld. CIT(A)-I, Kolkata in Appeal No.823/CIT(A .....

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ceedings. 3. The brief facts of this case are that the assessee is engaged in the business of manufacturing and trading of wire cloth both metallic and synthetic which are used in paper making factories. In addition to this, the assessee is also engaged in the business of manufacturing and trading of chemicals. The assessee filed the original return of income on 24.09.2009 which was later revised on 15.01.2011. During the course of assessment proceedings, the assessee claimed additional deprecia .....

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. CIT(A() was correct in directing the A.O. to allow the claim of the assessee without adjudicating on the issue as to whether the additional depreciation on wind mill is allowable or not . 2. Whether the Ld. CIT(A) was correct in directing the A.O. to allow the claim of the assessee whereas the Apex Court in the case of Goetz (India) Ltd. held that the assessee cannot amend a return filed by him for making a claim for deduction other than by filing a revised return. 3. Whether the Ld. CIT(A) wa .....

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eciation on wind mill even in the revised return filed by him, but only claimed the same by way of a revised computation filed during the course of assessment proceedings. Accordingly, he relied upon the decision of the Hon ble Supreme Court in the case of Goetze (India) Ltd. vs CIT [2006] 157 Taxman 1 (SC)/284 ITR 323 (SC). 6. In response to this, the ld. AR argued that the decision of the Goetze India Ltd. case is not applicable to the appellate authorities and hence the relief granted by the .....

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nd from the arguments of the ld. DR that the assessee had made a claim for additional depreciation on wind mill in the revised computation of income statement filed before completion of assessment proceedings. Admittedly, the assessee had missed the bus in the opportunity provided to him by the statute by filing the revised return within the time limit prescribed u/s 139(5) of the Act. However, that does not prevent the assessee from making its legitimate claims and its doors are not completely .....

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o direct him to do what he failed to do. . The question of limitation on the ld. AO would have no relevance in view of the wider powers of the First Appellate Authority. Reliance in this regard is placed on the decision of the Hon ble Allahabad High Court in the case of Smt. Raja Rani Gulati vs CIT reported in (2012) 346 ITR 543 (All). 7.1. We also find that the veracity of the claim of additional depreciation on wind mill was never disputed by the ld. AO. It is also seen that there was a specif .....

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ITR 336 (Mad) has held as under :- In the case on hand, the assessee is stated to have set up a windmill at a cost of ₹ 5,85,60,000. It is true that the assessee is a company engaged in the business of manufacture of textile goods. As far as the application of section 32(1)(iia) of the Act is concerned, what is required to be satisfied in order to claim the additional depreciation is that the setting up of a new machinery or plant should have been acquired and installed after March 31,2002 .....

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iles, etc. is totally not germane to the specific provision contained in section 32(1)(iia) of the Act. In such circumstances, we are not able to appreciate the contention of the learned standing counsel for the appellant on the ground that the order of the Commissioner of Income-tax (Appeals) as confirmed by the Tribunal should be interfered with. It cannot also be said that setting up of a windmill will not fall within the expression setting up of a new machinery or plant . We do not find any .....

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existing four wind mills and claimed additional depreciation under section 32(1)(iia) of the Income tax Act, 1961. The order of the Commissioner (Appeals) granting additional depreciation under section 31(1)(iia) was confirmed by the Tribunal. On appeal by the Department : Held, dismissing the appeals, (i) that merely because a Co-ordinate Bench of the Tribunal had earlier taken a different view, the Tribunal need not kindly follow the earlier decision even if the earlier decision did not reflec .....

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