TMI Blog2017 (5) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... -07 observed that each windmill is to be considered independent and separate and as a consequence deduction u/s.80IA to be computed and decided the issue in favour of the assessee Addition made in respect of employees contribution towards PF/ESI u/s 43B - belated payment - Held that:- It is not disputed by the Revenue that the assessee has not paid the employer’s contribution before the due date of filing of the return. Various Courts including the Hon’ble Jurisdictional High Court in the case of CIT v. Nexus Computer (P) Ltd. [2008 (8) TMI 304 - MADRAS HIGH COURT] it was held that the PF and ESI contribution paid belatedly, but prior to due date of filing of return could not be disallowed under section 43B of the Act. Decided in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue is that the ld. CIT(A) has erred in allowing deduction under section 80-IA of the Income Tax Act, 1961 [ Act in short]. 3. The assessee is a company, engaged in the business of wheat flour milling and windmill power generation and filed its return of income on 30.09.2013 admitting its income of ₹ 8,42,39,360/-. The case was taken for scrutiny through CASS and assessment under section 143(3) of the Act was completed on 11.01.2016, wherein, the Assessing Officer made various disallowances including disallowance of deduction under section 80-IA of the Act on wind mill. 4. During the course of assessment proceedings, it was observed by the Assessing Officer that the assessee had claimed the deduction under section 80-IA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach other. Further, each of the windmill has a separate power purchase agreement with TANGEDCO and has separate meter for recording of electricity generated and supplied and that each of the windmill is to be treated as a separate undertaking for the purpose of computing the relief under section 80IA of the Act. We find that on an identical issue in similar facts, in assessee s own case for the assessment year 2010-11 in I.T.A. No. 2225/Mds/2015 dated 29.01.2016, the Coordinate Benches of the Tribunal has observed and held as under: 3. In this case, the assessee had during the previous year relevant to the asst. year 2010-11 seven windmills from which power was being generated and used for own consumption as well as being supplied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said contributions have been paid belatedly. 9. On appeal, the ld. CIT(A) allowed the ground raised by the assessee. 10. On being aggrieved, the Revenue is in appeal before Tribunal and the ld. DR dutifully supported the order passed by the Assessing Officer. 11. We have heard the rival contentions. The only dispute of the Assessing Officer is that on verification of the profit and loss account, an amount of ₹ 78,195/- has been belatedly paid by the employer and hence the same was disallowed under section 43B of the Act and added to the income of the assessee. The ld. CIT(A) has observed that in the CBDT Circular No. 22/2015 dated 17.12.2015 in F.No. 279/Misc/140/2015-ITJ, it has been clarified that the Apex Court deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal as well as decision in other cases, the ld. CIT(A) allowed the ground raised by the assessee. 15. We have considered the rival contentions. The disallowance was made on account that the assessee has made excess claim of depreciation. The ld. CIT(A) has observed that on an identical issue in the case of Devi Polymers P. Ltd. v. ACIT in I.T.A. No. 165/Mds/2014 dated 09.04.2014, the Tribunal has considered the decisions in the case of DCIT v. Brakes India Ltd. in ITA No. 1069/Mds2010 dated 06.01.2012 and in the case of CRI Pumps P. Ltd. v. ACIT, wherein, it has been held that additional depreciation to the extent not claimed by the assessee in the earlier year ought to be allowed. Thus, the ld. CIT(A) allowed the claim of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 21.11.2014, wherein the disallowance was deleted on the observation that the AO s findings alleging diversion of interest bearing funds proved to be contrary to the case record . The ITAT followed the same in respect of the disallowance for a subsequent period also. Respectfully following the decision, the AO is directed to recompute the disallowance after excluding the interest arising from borrowed funds specifically relatable to the business and specific source of income of the appellant. The appellant has explained the same under various heads in respect of interest of ₹ 95,71,009 in its submission reproduced as above at para 23. This ground of appeal is partly allowed. In view of the above concur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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