TMI Blog2016 (3) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... work & commissioning etc. also will qualify for the same rate of depreciation as applicable to wind turbine itself. The issue is no longer res-integra and is covered by the decision of Co-ordinate Bench of the Tribunal in the case of Poonawala Finvest & Agro (P.) Ltd. vs. ACIT, (2008 (6) TMI 586 - ITAT PUNE ) wherein it has been clearly held that the capital expenditure incidental to the windmill has to be tested on the touchstone of the functional test and the assessee will be entitled to higher rate of depreciation on such incidental expenditure, if it has no other use except for power generation done by the windmill. - Decided in favour of assessee Disallowance on account of element of personal user towards vehicle repairs and mainten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 10,12,043/- on the cost of foundation of a Wind Turbine and on the cost of installation and commissioning of the Wind Turbine without properly appreciating the explanation filed. 2. While confirming the disallowance of depreciation amounting to ₹ 10,12,043/-, the learned CIT(A) conveniently ignored the copies of the appellate order passed by the CIT (A) in similar type of case and also ignored the decisions of the ITAT and of the Bombay High Court when copies of those decisions were filed before him on 19th of March, 2013 and when the said decisions were directly on the issue involved. 3. The learned CIT(A) further erred in confirming the disallowance of ₹ 1,03,815/- on account of alleged personal use without prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Windmill machinery Rs.3,29,37,300 Total cost Rs.3,60,74,328 5. The Assessing Officer has noticed that depreciation on the entire windmill project has been claimed at an accelerated rate of 80% applicable to windmills whereas depreciation of 10% is allowable in respect of civil work and depreciation @ 15% was allowable on the cost of installation and commissioning. The assessee has objected to this observation and claimed higher rate of 80% available on the entire plant relying on the decision in the case of Poonawala Finvest and Agro Pvt. Ltd. vs. ACIT, 12 DTR 211 by ITAT, Pune. The assessee also relied on decision of the Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 wherein the Tribunal has decided the issue in favour of the assessee. The relevant extract of the order of the Tribunal on the issue is reproduced hereinbelow :- 8. We have carefully considered the orders of the authorities below and submissions made on behalf of the revenue. The only issue for adjudication before us is allowability of similar depreciation rate as applicable to windmills, also to the foundation civil work and erection commissioning work executed for these windmills. It is the case of the assessee before the Assessing Officer as well as before the CIT(A) that entire expenditure together with cost of windmill is entitled to same rate of depreciation at 80% as the other expenditure incurred towards foundation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Co-ordinate Bench of Pune Tribunal in the case of M/s D.J. Malpani vs. ACIT in ITA Nos.1148 to 1154/PN/2013, order dated 30.10.2015. Accordingly, we hold that the Revenue is misdirected itself in law in making the impugned disallowance of depreciation. 9. The issue being squarely covered in favour of the assessee the depreciation as claimed by the assessee deserves to be allowed. In the result, Ground Nos.1 2 are allowed. 10. Ground No.3 of the appeal of assessee relates to disallowance of ₹ 1,03,815/- on account of element of personal user towards vehicle repairs and maintenance, telephone expenses and travelling expenses, etc. on estimated basis. 11. It is the case of the assessee that in the case of a company eleme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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