TMI Blog2015 (12) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... inal return of income filed u/s.139(1) - Held that:- CIT(A) was not justified in rejecting the claim made u/s.80IA(4) of the I.T Act merely because the assessee had not made the claim in the original return. Methodology of computation of deduction u/s.80IA(4) - Held that:- Each phase of windmill has to be considered as separate undertaking eligible for deduction u/s.80IA and therefore deduction u/s.80IA(4) should have been computed independently for each phase and not on consolidated basis. Applicability of provisions of section 80IA(5) - selection of initial assessment year - whether initial assessment year u/s.80IA(5) means year of installation of windmill or year in which the claim of deduction u/s.80IA is first made? - Held that:- The provisions of section 80IA(5) are applicable only from the initial assessment year, i.e. the assessment year in which deduction u/s.80IA was first claimed by the assessee after exercising his option as per the provisions of section 80IA(2) of the Act. - Decided in favour of assessee. - ITA Nos.1148 to 1154/PN/2013 - - - Dated:- 30-10-2015 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri Nikhil Pathak For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction claimed u/s. 80IA(4) of ₹ 2,27,20,498/-. 2] The learned CIT(A) erred in holding that the assessee was not entitled to make a fresh claim in the return filed u/s. 153A on the ground that in the asst. u/s 153A, only income which had escaped asst. could be taxed and the assessee could not be placed in a better position vis-a-vis the income declared in the original return. 3] The learned CIT(A) erred in holding that in the asst. u/s. 153A, the issues which have already attained finality in the original asst. cannot be disturbed unless any incriminating evidence is found in respect of the same and since no such material was found in respect of the deduction u/s. 80IA(4) claimed in respect of windmills, the said claim of the assessee made in the asst. u/s. 153A was not allowable. 4] The learned CIT(A) failed to appreciate that in the asst. u/s. 153A, the assessee could make a fresh claim which was not made in the original return and there was no such bar that no new claim could be made by the assessee in the return filed u/s 153A. 5] The learned CIT(A) ought to have appreciated that the asst. u/s. 143(3) had not taken place for this year and hence, in the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l return of income has to be upheld. The grounds raised by the assessee are accordingly dismissed. ITA No.1149/PN/2013 (A.Y. 2005-06) (By Assessee) : 5. Grounds of appeal No.1 to 8 by the assessee relate to denial of deduction claimed u/s.80IA(4) of the Act amounting to ₹ 3,33,57,599/-. 6. Facts in brief are that the assessee had made a claim of ₹ 3,33,57,599/- u/s.80IA(4) in the return filed in response to notice u/s.153A whereas no such claim was made in the original return of income. The AO disallowed such claim which was upheld by the CIT(A). Aggrieved with such order of CIT(A) the assessee is in appeal before us. 7. After hearing both the sides, we find the grounds raised by the assessee are identical to grounds of appeal in ITA No.1148/PN/2013 for A.Y. 2004-05. We have already decided the issue and the grounds raised by the assessee have been dismissed. Following the same reasonings, the grounds raised by the assessee for A.Y. 2005-06 are also dismissed. ITA No.1183/PN/2013 (A.Y. 2005-06 (By Revenue) : 8. The grounds raised by the Revenue are as under : 1. The Ld.CIT(A) erred in deciding that no addition can be made u/s.153A, if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed u/s.153A the AO has made this addition. Relying on the decision of the Hon ble Bombay High Court in the cases of CIT Vs. Murali Agro Products Ltd. vide ITA No.36/2009 order dated 29-10-2010 and the decision of the Special Bench of the Tribunal in the case of All Cargo Global Logistics Ltd. Vs. DCIT reported in 18 ITR 106 it was argued that in absence of any incriminating material found during the course of search no addition can be made in the assessment u/s.153A of the I.T. Act. 11. In appeal the Ld.CIT(A) relying on the decision of the Special Bench of the Tribunal in the case of Merilyn Shipping and Transports Ltd. reported in 16 ITR (Trib.) 5 deleted the addition made u/s.40a(ia). Further, he noted that this addition was neither made in the original assessment nor does it arise out of any new facts unearthed during the search. Relying on the decision of the Hon ble Bombay High Court in the case of Murali Agro Products Ltd. (Supra) and following his decision in the case of Rajesh Malpani for A.Y. 2004-05 vide Appeal No.PN/CIT(A)-I/ACIT/Cen.Cir.1(1)/PN/430/11-12 the Ld.CIT(A) held that the assessment which has already been completed u/s.143(3) prior to search becomes fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in response to notice u/s.153A on 24-06-2010 the assessee declared income of ₹ 15,42,90,549/- after claiming deduction of ₹ 4,70,07,435/- u/s.80IA(4). The original assessment u/s.143(3) was passed on 29-12-2008 making addition of ₹ 58,64,461/- to the total income of the assessee. In the order passed u/s.153A r.w.s. 143(3) the AO denied the fresh claim made u/s.80IA(4) amounting to ₹ 4,70,07,435/- which was upheld by the CIT(A). 17. Aggrieved with such order of the CIT(A) the assessee is in appeal before us. 18. After hearing both the sides, we find the grounds raised by the assessee are identical to grounds of appeal in ITA No.1148/PN/2013 for A.Y. 2004-05. We have already decided the issue and the grounds raised by the assessee have been dismissed. Following the same ratio, the grounds raised by the assessee are dismissed. 19. Grounds of appeal No.9 to 9.2 by the assessee are as under : 9] The learned CIT(A) erred in confirming the disallowance of depreciation at higher rate of 80% claimed by the assessee in respect of the cost of electrical yard fencing and the cost of preparation of temporary approach road without appreciating that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d depreciation thereof, made in the original return of income. The claim by the appellant of depreciation at higher rate on civil construction of windmills is inadmissible in view of the jurisdictional ITAT decision in Poonawalla Finvest and Agro (P) Ltd. Vs ACIT reported in 118 TTJ 68 and Vanaz Engineering Ltd. vs. Addl. CIT in ITA No. 987/PN/2006 dated 31.10.2008. The Delhi High Court in Anil Kumar Bhatia and Special Bench ITAT Mumbai in All Cargo Logistics have clearly held that reassessment of income is possible in the fresh proceedings u/s 153A, consequent to search, on the basis of books of accounts not produced earlier, since the two proceedings get merged. In view of the above, following the jurisdictional ITAT decisions referred to supra and my appellate order in the appellant's case for A.Y. 2010-11 in appeal No. PN/CIT(A)- IIACIT/Cen.Cir.1(1)/PN/487/11-12 dated 18.3.2013, grounds of appeal No. 19 to 19.2 are treated as partly allowed, subject to the computation of depreciation as per directions contained in para 6.3 of that order. 23. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us. 24. The Ld. Counsel for the assessee at the outset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al paid. 28. After hearing both the sides, we find the above grounds filed by the Revenue are identical to the grounds of appeal in ITA No.1183/PN/2013 for A.Y. 2005-06. We have already decided the issue and the grounds raised by the Revenue have been dismissed. Following the same reasonings the above grounds are decided accordingly. Even otherwise also disallowance was made in original assessment u/s.143(3) which was upheld by CIT(A). On further appeal, the Tribunal allowed the appeal of the assessee as stated by CIT(A) and not controverted by the Ld. Departmental Representative. Therefore, in absence of any incriminating material, no addition can be made in the assessment u/s.153A. The grounds by the Revenue are accordingly dismissed. 29. Grounds of appeal No. 3 4 by the Revenue are as under : 3. The Ld.CIT(A) erred in deciding that power generation from windmill is manufacturing activity. 4. The Ld.CIT(A) erred in deciding that assessee can claim depreciation on windmill if assessee is engaged in manufacturing activities, although mindmill has not connection with its manufacturing business. 30. Facts in brief are that the AO in the assessment order held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim the benefit of section 32(1)(iia) of the Income Tax Act, 1961, what is required to be satisfied is that the new machinery or plant should have been acquired and installed after March 31, 2002, by an assessee, who was already engaged in the business of manufacture or production of any article or thing. The provision does not state that the setting up of a new machinery or plant, which was acquired and installed after March 31, 2002, should have any operational connectivity to the article or thing that was already being manufactured by the assessee. 35. The Chennai Bench of the Tribunal in the case of ACIT Vs.M. Satish Kumar ITA No.718/Mds/2012 order dated 28-09-2012 has held that generation of electricity is akin to manufacturing of new product. Relying on the decision of Hon ble Supreme Court in the case of CIT Vs. Madhya Pradesh Electricity Board reported in 1970 AIR 732 (SC) and the decision of the Delhi Bench of Tribunal in the case of NTPC Ltd. reported in 2002 (4) (TM) 694 (SC) it was held that generation of electricity is a manufacturing activity and the assessee is eligible for additional depreciation u/s.32(1)(iia). In view of the above, the order of the CIT(A) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en without prejudice to each other - On facts and in law, 1] The learned CIT(A) erred in denying the deduction claimed u/s 80IA(4) of ₹ 5,36,44,728/-. 2] The learned CIT(A) erred in holding that in view of the provisions of section 80AC, the assessee can claim the deduction u/s 80IA( 4) only if the same has been claimed in the return filed within the due date stipulated u/s.139(1) and since the said claim was not made in the original return filed u/s 139(1), the same could not be allowed in the asst. u/s 153A. 3] The learned CIT(A) erred in holding that the assessee was not entitled to make a fresh claim in the return filed u/s 153A on the ground that in the asst. u/s 153A, only income which had escaped asst. could be taxed and the assessee could not be placed in a better position vis-a-vis the income declared in the original return. 4] The learned CIT(A) erred in holding that in the asst. u/s 153A, the issues which have already attained finality in the original asst. cannot be disturbed unless any incriminating evidence is found in respect of the same and since no such material was found in respect of the deduction u/s 80IA(4) claimed in respect of windmills, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rightly claimed by the assessee. 10] The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal. 42. The Ld. Counsel for the assessee at the outset submitted that grounds of appeal no.9 and 9.1 are against the assessee for which the Ld. Departmental Representative has no objection. Accordingly, the Grounds of Appeal No.9 and 9.1 are dismissed. 43. Grounds of appeal No.1 to 6 relate to denial of deduction u/s.80IA(4) amounting to ₹ 5,36,44,728/-. 44. Facts of the case, in brief, are that the assessee filed original return of income on 30-10-2007 declaring total income at ₹ 18,17,42,421/-. In response to notice u/s.153A the assessee filed the return of income on 24-06-2010 disclosing total income of ₹ 12,80,97,695/- after claiming deduction of ₹ 5,36,44,728/-. Since the assessee had not claimed the deduction u/s.80IA(4) the AO was of the opinion that the assessee cannot make the fresh claim in the return filed in response to notice u/s.153A which was not claimed in the original return. According to the AO the person who is searched cannot be placed in a better position after search by declaring lesser income in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year , the year of installation has to be necessarily adopted rather than the first year of claim in order to reject the claim of the assessee. The AO accordingly disallowed the claim of deduction of ₹ 5,36,44,728/- u/s.80IA(4). 45. Before CIT(A) the assessee apart from relying on the submissions made in the preceding assessment years submitted that no assessment u/s.143(3) was completed prior to the date of search. Although the assessee in the original return of income had not claimed any deduction u/s.80IA, however, since no assessment has taken place in this year, all the issues are open for adjudication and hence the assessee can claim deduction which was not claimed in the original return. It was argued that where no assessment has been made prior to the date of search, assessee can make additional claim in the return filed u/s.153A. For the above proposition, the assessee relied on the decision of the Special Bench of the Tribunal in the case of All Cargo Global Logistics Ltd. Vs. DCIT reported in 18 ITR 106 wherein it has been held that for a year for which no assessment has been made prior to search all the issues are open for adjudication. It was accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that if the assessee has not made any claim in the return no deduction is allowable. The said section only states that if the assessee has not made a claim in the return no deduction is allowable. It does not state that the assessee should make the claim in the return filed u/s.139(1). Therefore, even as per this section, there is no merit in the contention of the department. In any case, in view of the decision of the Tribunal in the case of B.G. Shirke Construction Technology Pvt. Ltd. (Supra), the assessee is entitled to make the claim. Since the assessee has made the claim in the return of income filed u/s.153A and the assessment for this year was pending on the date of search. 51. The Ld. Departmental Representative on the other hand heavily relied on the order of the Ld.CIT(A). He submitted that since the assessee has not made the claim u/s.80IA(4) in the original return of income filed u/s.139(1), therefore, the assessee is precluded from claiming of the same in the return filed u/s.153A. He submitted that the assessee cannot be allowed any benefit for its lapses in the return filed u/s.153A of the I.T. Act. He accordingly submitted that the order of the CIT(A) be up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 153A(1)(b) of the Act for the assessment years 2007-08 and 2008-09, which have abated and for the assessment years 2003-04 and 2006-07, which do not abate. Following the reasoning laid down in the case of All Cargo Global Logistics Ltd. (supra) , it has to be held that in so far as the assessment years 2003-04 and 2006-07 are concerned, assessments u/s 153A(1)(b) of the Act would be made on the basis of incriminating material, which has been explained to mean (i) books of account, other documents, found in the course of search but not produced in the course of original assessment; and, (ii) undisclosed income or property discovered in the course of search. Of course, the income so determined shall be in addition to the income already assessed in regular assessment proceedings for the said two assessment years. Now, the moot point is as to whether the impugned claim of the assessee for excluding income on account of retention money can fall in the scope and an ambit of an assessment made u/s 153A(1)(b) of theI.T Act for the assessment years 2003-04 and 2006-07. Ostensibly, as observed earlier on the basis of the decision of Special Bench of Tribunal in the case of All Cargo Glo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 2008-09 to be made u/s 153A(1)(b) of the Act, in our considered opinion, as the following discussion would so, such a claim though made for the first time in the impugned assessment proceeding, would fall within the ambit and scope of impugned assessment carried out u/s 153A(1)(b) of the Act. Pertinently, the original jurisdiction vested with the Assessing Officer for the assessment years 2007-08 and 2008-09 empowers him to consider the impugned claim; and, to put it in other words, assessee was competent to raise such a fresh claim in the context of the original jurisdiction vested with the Assessing Officer, though it was not raised in the returns of income originally filed. 13. We may also consider this from another angle. As on the date of initiation of search i.e. 18-12-2008, the returns of income filed by assessee u/s 139(1) of the Act for assessment years 2007-08 and 2008-09 were pending for assessment and the impugned claimed was not made in the returns of income originally filed. So, however, u/s 139(5) of the Act, assessee was competent to furnish a revised return and make such a claim, and thus the Assessing Officer was required to entertain such a claim in the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the contract value. It is pointed out that strictly speaking the judgement of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra) is not applicable in the present case as no fresh claim was made in the assessment proceedings, but it is a case where a claim putforth in the return of income was only quantified during assessment proceedings and thus the Assessing Officer ought to have entertained the impugned claim. Alternatively, it is contended that the CIT(A) enjoys plenary powers of the Assessing Officer, and following the judgment of the Hon'ble Supreme Court in the case of Jute Corporation of India Ltd. vs. CIT, (1991) 187 ITR 688, the claim should have been entertained by him as the complete facts were on record. In this context, the learned counsel referred to the decision of the Pune Bench of the Tribunal in the case of Jain Irrigation Systems Ltd. vide ITA No.1319/PN/2009 dated 30.01.2012 wherein the import of the judgment of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra) has been explained on the basis of the judgment of the Hon'ble Delhi High Court in the case of CIT vs. Jai Parabolic Springs Ltd., (2008) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completion of the construction. Inadvertently in the original return filed this amount was not excluded while computing the total income. In the short span of time allowed to us to file the return u/s. 153A, the exact quantification of the retention money could not be worked out. Hence we will submit the details thereof later. But for the time being, we submit that the retention money in the various contracts is not taxable in view of the various decisions including the decisions cited below wherein it is held that the taxability of this amount is to be considered in the year in which this amount is due to the assessee from the contractee. (a) CIT v Associated Cables P. Ltd. (2006) 286 ITR 596 (Bom.) (b) DCIT v Spirax Marshall Ltd. (2007) 109 TTJ (Pune) 593 (c) National Heavy Engg. Co. Op. Ltd. v DCIT (2007) 105 ITD 485 (Pune) Inadvertently, in the Original Return of Income this amount was not claimed as deduction. We request Your Honour to kindly grant us appropriate deduction while completing assessment. We shall submit the necessary details and quantification of claim during the course of assessment. 20. The aforesaid Note clearly depicts the claim of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 22. Thus, considered in the aforesaid light, we find no justification for the Revenue to reject assessee's impugned claim for assessment years 2007- 08 and 2008-09 on the ground that the claim was made by way of a letter during the course of assessments and not in the return of income. 23. The third objection which has been raised by the Revenue is in terms of a discussion made by the CIT(A) in para 3.6 of the impugned order. According to the CIT(A), if the claim for excluding retention money was entertained and allowed, it would result in the determination of total income at a figure below the income originally returned/assessed and thus the same was not permissible. This objection of the Revenue, in our view is no bar to entertain the aforesaid claim, keeping in mind the ratio of the judgement of the Hon'ble Supreme Court in the case of CIT vs. Shelly Products Anr., (2003) 261 ITR 367 (SC) and also the judgement of the Hon'ble Gujarat High Court in the case of Gujarat Gas Co. Ltd. vs. CIT, 245 ITR 54 (Guj). 24. On the basis of the aforesaid discussion, in conclusion we hold that in so far as the assessment years 2007-08 and 2008-09 are concerned, the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2002-03, there were consistent losses up to the A.Y. 2007-08 and assessee did not opt for claiming the deduction u/s 80IA(2) of the Act. So far as A.Y. 2008-09 is concerned, assessee opted for claiming the deduction u/s 80IA(2) treating the said assessment year (A.Y.) as an initial assessment year as there was the profit in Satara wind mill but losses in the Tamil Nadu wind mill and Panchgani wind mill. If we look at the scheme of the section 80IA(2), it speaks about the undertaking or enterprise and not the business of the assessee. Admittedly, three wind mills at the 3 locations are independently operated and the financial results are separately worked out. As per sub-sec.(5) of section 80IA, for computing the deduction u/s 80IA(2), the eligible business is to be treated as the only source of income. Sub-sec.(5) of section 80IA has been explained by the Hon'ble High Court and Kerala in the case of CIT Vs. Accel Transmatic Systems Ltd. 230 CTR 206 (Ker) which has been followed by the Ld. CIT(A). The term business used In sub-sec.(5) section 80IA in our humble opinion is confined to the independent undertaking and cannot get merged with the other businesses. In Sec. 80I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of eligible business of the assessee the AO prepared a chart for different assessment years and came to the conclusion that the cumulative loss if ₹ 73,49,07,073/- on a consolidated basis. Such cumulative income is also negative on separate undertaking basis for each undertaking, i.e. Satara-I, Satara- II, Satara-III and Rajasthan for which the assessee has claimed deduction. He further noted that the major bone of contention between the assessee and the revenue is the issue of initial assessment year as envisaged in section 80IA(5) of the I.T. Act. Assessee treats the first year of its claim as initial assessment year and thereby computes its quantum deduction u/s.80IA(4) of the Act. However, the provisions make it clear that assessee is eligible for deduction u/s.80IA(4) only when profits and gains from windmills exceed the accumulated depreciation on such windmills. He, therefore, was of the opinion that the year of installation has to be necessarily treated as initial assessment year in order to arrive at quantum of eligible deduction u/s.80IA(4) in accordance with section 80IA(5) of the I.T. Act. 61. Following the decision of the Special Bench of the Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness for the first five assessment years commencing at any time during the periods as specified in sub-s. (2) and thereafter, twenty-five per cent of the profits and gains for further five assessment years : Provided that where the assessee is a company, the provisions of this subsection shall have effect as if for the words twenty-five per cent ; the words thirty per cent had been substituted. (2) The deduction specified in sub-s. (1) may, at the option of the assessee, be claimed by him for any ten consecutive assessment years out of fifteen years beginning from the year in which the undertaking or the enterprise develops and begins to operate any infrastructure facility or starts providing telecommunication service or develops an industrial park or generates power or commences transmission or distribution of power : Provided that where the assessee begins operating and maintaining any infrastructure facility referred to in cl. (b) of Explanation to cl. (i) of sub-s. (4), the provisions of this sub-section shall have effect as if for the words fifteen years , the words twenty years had been substituted............... 14. From the above provisions of sub-s. (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the opinion, the learned CIT(A) erred in holding that the initial assessment year for the purposes of s. 80- IA(2) r/w s. 80-IA(5) was the year in which the assessee started generating the electricity. Therefore, the order of the CIT(A) has to be reversed on this issue. It is clear that the initial assessment year for the above purposes was the first year in which the assessee claimed the deduction under s. 80-IA(1) after exercising his option as per the provisions of s. 80-IA(2) of the Act. Consequently, the assessee is entitled to claim the deduction of ₹ 25,44,326 under s. 80-IA in respect of the profits from the windmill activity. Accordingly, the clarificatory ground raised is allowed. In the result, adjudication of the grounds 3 and 4 raised in the appeal is mere academic and hence they are dismissed as infructuous. 16. In the result, the appeal of the assessee is allowed. 65. Respectfully following the decision of the Coordinate Bench of the Tribunal cited (Supra) and in absence of any contrary material brought to our notice we hold that the provisions of section 80IA(5) are applicable only from the initial assessment year, i.e. the assessment year i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable only to an assessee engaged in manufacture of production of article or thing. Since the assessee was generating power and not producing the power from wind energy, the claim of additional depreciation made by the assessee is not allowable. According to the AO, the set up of a windmill had absolutely no connection with the assessee s main business of tobacco. The assessee was already enjoying the benefit of depreciation at a higher rate and by claiming further additional depreciation the assessee would derive double benefit which is not permissible under the Act. In view of the above, the AO rejected the claim of additional depreciation at ₹ 91,23,658/-. 73. In appeal the Ld.CIT(A) allowed the claim of the assessee by observing as under : 7.1 The appellant has stated that since the issue is similar to Grounds No.20 to 20.5 to A.Y. 2006-07, it places reliance on submissions made for that year. However, the facts for A.Y. 2006-07 are distinguishable in as much as the claim for additional depreciation was made in the original return filed and allowed by the Assessing Officer in the original proceedings u/s.143(3). For the impugned year, the appellant did make a clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been followed in this year has observed as under : 6.3 On careful consideration, I find that the above issue has been dealt elaborately by the jurisdictional Tribunal in the case of poonawalla Finvest Agro Pvt. Ltd. Vs. ACIT reported in 118 TTJ (Pune) 68 : 2008 12 DTR 211 and Vanaz Engineering Ltd. Vs. Addl.CIT, Range-7 in ITA No.987/PN/2006 A.Y. 03-04 dated 31-10-2008. In view of the above, I do not find any requirement to consider other judgments relied upon by the appellant as the Hon ble Tribunal, Pune A Bench has already considered these aspects while giving the judgment on the above issue in the above referred cases. In the case of Poonawalla Finvest Agro Pvt. Ltd., the Hon ble Tribunal has held that the civil work of control room, site development and internal roads adjunct to a windmill generating electricity is not entitled to 100%b depreciation as a windmill but transformer upto DP structure being gadget for transmission of power generated by windmill is entitled to 100% depreciation. Similarly, in the case of Vanaz Engineering Ltd. also wherein the principle laid in Poonawalla Finvest Agro Pvt. Ltd. was followed, it was held that claim of depreciation in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality in the original asst. cannot be disturbed unless any incriminating evidence is found in respect of the same and since no such material was found in respect of the deduction u/s 80IA(4) claimed in respect of windmills, the said claim of the assessee made in the asst. u/s153A was not allowable. 5] The learned CIT(A) failed to appreciate that in the asst. u/s. 153A, the assessee could make a fresh claim which was not made in the original return and there was no such bar that no new claim could be made by the assessee in the return filed u/s. 153A. 6] The learned CIT(A) ought to have appreciated that the asst. u/s 143(3) had not taken place for this year and hence, in the asst. u/s 153A, the A.O. was bound to assess the total income of the assessee and therefore, even the issues in respect of which no incriminating evidence was found during search should have been considered in the asst. u/s 153A and thus, the deduction claimed by the assessee should have been allowed. 82. Grounds of appeal No. 1 to 6 relate to disallowance u/s.80IA(4) where the assessee has not claimed the same in the return filed u/s.139(1) and claimed the same for the first time in the return filed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uming without admitting that the assessee is not eligible to make fresh claims in the asst. u/s.153A, the assessee submits that the assessee had already claimed deduction u/s.80IA(4) to the tune of ₹ 3,22,50,551/- in the original return filed u/s.139(1) and hence, the deduction should have been allowed to that extent. 89. After hearing both the sides, we find it is the alternate contention of the assessee that deduction u/s.80IA(4) made to the extent of its claim in the original return. Since we have already allowed the claim made in the return u/s.153A, therefore, this ground becomes infructuous. Accordingly, the same is dismissed. 90. Grounds of appeal No.10 to 10.1 by the assessee reads as under: 10] The learned CIT(A) erred in holding that the expenditure on electrical yard fencing and cost of preparation of temporary approach road was not part of the windmill and hence, the depreciation at a higher rate of 80% was not allowable in respect of such items. 10.1] The learned CIT(A) failed to appreciate that the above items were part and parcel of the wind mill purchased by the assessee and therefore, depreciation @ 80% was rightly claimed by the assessee. 91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned CIT(A) erred in holding that the assessee was not entitled to make a fresh claim in the return filed u/s 153A on the ground that in the asst. u/s 153A, only income which had escaped asst. could be taxed and the assessee could not be placed in a better position vis-a-vis the income declared in the original return. 4] The learned CIT(A) erred in holding that in the asst. u/s 153A, the issues which have already attained finality in the original asst. cannot be disturbed unless any incriminating evidence is found in respect of the same and since no such material was found in respect of the deduction u/s 80IA(4) claimed in respect of windmills, the said claim of the assessee made in the asst. u/s153A was not allowable. 5] The learned CIT(A) failed to appreciate that in the asst. u/s. 153A, the assessee could make a fresh claim which was not made in the original return and there was no such bar that no new claim could be made by the assessee in the return filed u/s. 153A. 6] The learned CIT(A) ought to have appreciated that the asst. u/s 143(3) had not taken place for this year and hence, in the asst. u/s 153A, the A.O. was bound to assess the total income of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 103. After hearing both the sides, we find the above grounds by the assessee are identical to grounds of appeal No.8 to 8.1 in ITA No.1151/PN/2013. We have already decided the issue and the grounds raised by the assessee have been allowed. Following similar reasonings, the above grounds raised by the assessee are allowed. 104. Ground of appeal No.9 by the assessee reads as under : 9] Without prejudice to the above grounds, assuming without admitting that the assessee is not eligible to make fresh claims in the asst. u/s.153A, the assessee submits that the assessee had already claimed deduction u/s.80IA(4) to the tune of ₹ 2,31,54,624/- in the original return filed u/s.139(1) and hence, the deduction should have been allowed to that extent. 105. After hearing both the sides, we find it is the alternate contention of the assessee that deduction u/s.80IA(4) made to the extent of its claim in the original return. Since we have already allowed the claim made in the return u/s.153A, therefore, this ground becomes infructuous. Accordingly, the same is dismissed. 106. Grounds of appeal No.10 to 10.1 by the assessee reads as under: 10] The learned CIT(A) erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee were to be considered as one consolidated eligible undertaking and the deduction u/s.80IA(4) was to be computed on consolidated basis only. 2. The learned CIT(A) erred in not appreciating that each phase of wind mills was to be considered as a separate undertaking eligible for deduction u/s 80IA and hence, the deduction u/s 80IA(4) should have been computed independently for each phases and not on consolidated basis. 3. The Ld.CIT(A) ought to have appreciated that the assessee could have separate undertaking carrying on the eligible business and there was no reason to combine all the eligible undertakings for computing the deduction u/s.80IA(4). 114. After hearing both the sides, we find the above grounds are identical to ground of appeal No.7 in ITA No.1151/PN/2013 for A.Y. 2007-08. We have already decided the issue and the grounds raised by the assessee have been allowed. Following the same reasonings, the above grounds raised by the assessee are allowed. 115. Grounds of appeal No. 4 and 5 by the assessee read as under : 4. The Ld.CIT(A) erred in holding that the expenditure on electrical yard fencing and cost of preparation of temporary approach road was no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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