9911796707
TMI Blog2018 (7) TMI 1970X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) is justified in deleting the disallowance of deduction u/ s 801A of Rs. 42,02,188/- ignoring the provision of section 80AC and 80IA(7), according to which it is mandatory to file return of income on or before the date of filing return of income u/ s 139(1) and the return should be accompanied with Form No. 1 OCCB. (iv) Whether on the facts in the circumstances of the case and in law the ld. CIT(A) was justified in holding that depreciation @ 80% has to be allowed on Wind Turbine Machine without segregating investment on construction part and electric item without appreciating that depreciation at 80% is allowable on Wind Turbine Generator Machine and not on construction and electric fitting. (v) The appellant craves its rights to add, amend or alter any of the grounds on or before the hearing." 2. Ground Nos. (i) and (ii) are regarding the addition made by the AO on account of employee's contribution to ESI/PF beyond the prescribed time limit provided in the respective Acts which was deleted by the ld. CIT(A). 3. We have heard ld. DR as well as ld. AR and considered the relevant material on record. At the outset we note that this issue is now covered by the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. However, on making deposit with the concerned authorities, the assessee becomes entitled to deduction under the provisions of s. 36(1 )(va). Sec. 43B(b), however, stipulates that such deduction would be permissible only on actual payments. This is the scheme of the Act for making an assessee entitled to get deduction from income insofar as employees' contribution is concerned. Deletion of the second proviso has been treated as retrospective in nature and would not apply at all. The case is to be governed with the application of the first proviso. If the employees' contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provision are made in the Provident Fund Act as well as the ESI Act. Therefore, the Acts permit the employer to make the deposit with some delays , subject to the aforesaid consequences. Insofar as the I T Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed. - CIT vs. Vinay Cement Ltd. (2007) 213 CTR (SC) 268, CIT vs. Dharmendra Sharma (2007) 213 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upported the order of the ld. CIT(A) and submitted that filing of audit report in Form No. 10CCB is not mandatory but it is directory. Therefore, merely because the assessee did not file the audit report in Form No. 10CCB along with original return of income, the claim cannot be denied. He has relied upon the decision of Hon'ble jurisdictional High Court in case of CIT vs. Rajasthan Fasteners (P) Ltd. 363 ITR 271. 6. We have considered the rival submission as well as the relevant materials on record. We note that the assessee filed its revised return of income on 25.03.2013 along with the audit report in Form No. 10 CCB and claimed of deduction U/s 80IA of the Act. The revised return of income was within the period of limitation as provided U/s 139(5) and therefore, it was a valid revised return of income. Once, the assessee filed a valid revised return of income and complied with the conditions as stipulated U/s 80IA of the Act then, the claim of the assessee cannot be denied merely on the ground that the assessee has not claimed deduction in the original return of income and also not filed the tax report in Form No. 10CCB along with return of income filed U/s 139(1) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermal Power Co. Ltd. v. Commissioner of Income Tax, where the Supreme Court observed that: The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. We do not see any reason to restrict the power of the Tribunal under Section 254 only to decide the grounds which arise from the order of the Commissioner of Income-tax (Appeals). Both the assessees as well as the Department have a right to file an appeal/cross-objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier." 13.In the case of Jute Corporation of India Ltd. v. Commissioner of Income Tax: (1991) 187 ITR 688 (SC), while dealing with the powers of the Appellate Assistant Commissioner, the Supreme Court observed that: "An appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment of the country and not to charge assessee more tax than that which is due and payable by the assessee." 16.Admittedly, the respondent-assessee is a 100% export orientedunit and had been claiming exemption right from the assessment year 2004-05 u/s 10B. It may be that the claim is to be allowed on year to year basis but when facts and circumstances reveal that the assessee was eligible even this year for exemption u/s 10B and it has been found to be in order except that instead of mentioning exemption u/s 10B, while efiling the return of the income tax, it was wrongly, on account of typographical error mentioned Sec.80IB, in our view, it cannot be said to be such a mistake by which the exemption could be disallowed outrightly. It was already stated by the assessee during the course of hearing before the AO himself that it complies with all the requirements for claim of exemption u/s 10B. The assessee company was under the bonafide belief that there was no mistake in the return, hence no revised return was filed but after knowing the clerical/computerized mistake that the claim was wrongly mentioned as u/s 80IB instead of Sec.10B, the assessee company filed a revised co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption under the concerned section. It is also an admitted position that substantial manufacturing activities were being carried out by the assessee within the bonded premises in terms of CBEC circular No.65/2002-Cus dated 07/10/2002 and notification No.52/2003-Cus dt.31/03/2003. In our view, the allegation of the AO was totally unfounded as all the documents, which are issued by the Government authorities, could not have been predated or fabricated by the assessee and in our view the allegation of the AO that the claim could be in the nature of an afterthought is not correct. 17.We may also observe that the CIT(A) had plenary power in disposing of an appeal. The scope of his power was co-terminus with that of the Income Tax Officer. He could do what the Income Tax Officer could do and also direct him to do what he had failed to do. It has been held by authorities of the Hon'ble Apex Court (supra) that above observations are squarely applicable and the interpretation of Section 251(1)(a) of the Act. The declaration of law was clear that the power of the Appellate Assistant Commissioner [CIT (Appeals)] was co-terminus with that of the Income Tax Officer and if that is so, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been allowed such exemption in the past, and merely because a typographical error crept in while e-filing the return and it was mentioned as u/s 80IB instead of Sec.10B, this being a technical mistake, should not come in the way by disallowing the otherwise allowable/eligible exemption." Accordingly, in view of the binding precedent, we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue. 7. Ground No. (iv) is regarding disallowance of depreciation @ 80% on certain part of the windmill. The Assessing Officer has noted that the assessee has claimed depreciation @ 80% in respect of windmill which includes building and other electrical work and installation which are not eligible for the higher rate of depreciation. Accordingly, the AO denied the higher rate of depreciation on the civil work which includes foundation and other accessories and electrical items and allowed the depreciation on these items @ 10% to 15% as per schedule of depreciation. The assessee challenged the action of the AO before the ld. CIT(A). The ld. CIT(A) has allowed the claim of the assessee by following decision of this Tribunal in case of Vijay Industries vs. ACIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad-III vs. Parry Engineering and Electronics Pvt. Ltd. In the case aforesaid Hon'ble Gujarat High Court held that "Windmill would require a scientifically designed machinery in order to harness the wind energy to the maximum potential. Such device has to be fitted and mounted on a civil construction, equipped with electric fittings in order to transmit the electricity so generated. Such civil structure and electric fittings, therefore, it can be well igamined, would be highly specialized. Thus, such civil construction and electric fitting would have no use other than for the purpose of functioning of the windmill. On the other hand, it can be easily imagined that windmill cannot function without appropriate installation and electrification. In other words, the installation of windmill and the civil structure and the electric fittings are so closely interconnected and linked as to form the common plant. As already noted, the legislature has provided for higher rate of depreciation of 80 per cent on renewable energy devises including windmill and any specially designed devise, which runs on windmill. The civil structure and the electric fitting, equipments are part and parcel of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
