TMI Blog2018 (5) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter called the CIT(A) ) for assessment years 2007-2008 and 2009-10 respectively, the appellate proceedings had arisen before learned CIT(A) from the separate orders both dated 24.03.2015 passed by learned Assessing Officer (hereinafter called the AO ) u/s 153A r.w.s 143(3) of the Income-tax Act, 1961 (hereinafter called the Act ). First we shall take up appeal of the Revenue in ITA no. 6824/Mum/2016 for assessment year 2007-08. The grounds of appeal raised by the Revenue in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai reads as under:- On the facts and in the circumstances of the case and in law, the Ld. CIT(A), erred in allowing depreciation in respect of foundation/civil work at the rates applicable to the windmills. 3. The assessee is engaged in the business of establishing wind farms to generate electricity through wind energy. A search seizure action under section 132 of the Income-tax Act, 1961 was carried out on 14.3.2013 in the premises of M/s Enercon India Limited (EIL) and its group of companies and at the residences of its main persons. The assessee company is one of the group companies of M/s Enercon India Ltd (now kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utset submitted that the issue is covered in favour of assessee by tribunal order in ITA no. 6392/Mum/2010 for AY 2007-08 vide orders dated 21.12.2011 w.r.t. Enercon Wind Farms (Rajasthan ) Private Limited. It was submitted that the assessee company name earlier was Enercon Wind Farms ( Rajasthan ) Private Limited which stood changed to Wind World Wind Farms (Rajasthan ) Limited w.e.f. 01- 03-2013. The learned counsel for the assessee also drew our attention to the orders of tribunal in ITA no. 6402 to 6405/Mum/2010 for AY 2004-05 to 2007-08 in the case of Group Company namely Enercon Wind Farms (Karnataka) Private Ltd. and also decision of the tribunal in ITA no. 6390/Mum/2008 and 6391/Mum/2010 for AY 2006-07 and 2007-08 in the case of group Company namely Enercon Wind Farms (Jaisalmer) Private Ltd. . Similarly it is pointed out by Ld. Counsel for the assessee that decision of the tribunal in the case of group Company in Enercon Windfarms (Jaisalmer) Private Ltd in ITA no. 2666/Mum/2009 for AY 2004- 05 is in the assessee favour, vide orders dated 04.06.2010. The said orders are placed in the file. The learned DR fairly conceded that issue is decided by tribunal in assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his common order for the sake of convenience. ITA No. 6402/Mum/2010 (A.Y. 2004-05). 2. The only effective ground raised by the Revenue in this appeal reads as under:- On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowances made by the Assessing Officer regarding the claim of depreciation to the extent of ₹ 3,37,62,448/- on civil work, erection and commissioning of wind mill without appreciating the facts and circumstances of the case and in law. 2.1 Facts of the case in brief are that the assessee company is engaged in the business of generation of power by wind energy through wind farms and sale thereof. During the year under consideration the assessee has commenced generation and sale of commercial power. The A.O. asked the assessee to furnish details of assets owned by it. After going through the details of various assets, the A.O. asked the assessee to justify its claim of depreciation on foundation, erection and commissioning @ 80%. According to the A.O. the assessee company is not entitled to depreciation @ 80% on civil work and it is entitled to depreciation @ 5% only. 2.2 In appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal is binding on the lower authorities, therefore, it is held that the foundation and its material like steel, reinforced cement, grave, earthling etc. are part and parcel of windmill without which the windmill cannot come into existence and hence the depreciation is allowable on it @ 80% on civil work i.e. foundation, erection and commissioning of a windmill. The Assessing Officer is therefore directed to treat the foundation, erection and commissioning as part and parcel of windmill and allow depreciation on @ 80%. Thus the ground of appeal is allowed. Aggrieved with such order of the ld. CIT(A), the Revenue is in appeal before us. 2.2 After hearing both the sides, we do not find any infirmity in the order of the ld. CIT(A) who allowed the claim of the assessee by following the decision of the Tribunal in the case of sister concern of the assessee. The ld. D.R. could not place any material so as to take a contrary view other than the view taken by the Tribunal. We, therefore, do not find any infirmity in the order of the ld. CIT(A) and accordingly uphold the same. The ground raised by the Revenue is accordingly dismissed. 3. In the result, Revenue s appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
