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TMI Blog2015 (4) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid order of ld. CIT(A), Revenue is now in appeal before us and has raised the following grounds;- 1. The ld. CIT(A) has erred in law and on facts in deleting the disallowance of Rs. 4,11,50,043/- on depreciation in respect of unproved additions to various assets, without properly appreciating the facts of the case and the material brought on record by the Assessing Officer. 2. The ld. CIT(A) has erred in law and on facts in admitting evidence in contravention of Rule 46A. 3. The ld. CIT(A) has erred in law and on facts in deleting the disallowance of Rs. 14,03,005/- u/s. 40A(2)(b), made by the A.O, without properly appreciating the facts of the case and the material brought on record by the Assessing Officer. 4. The ld. CIT(A) has erred in law and on facts in deleting the disallowance of claim of deduction u/s.80IA amounting to Rs. 1,56,87,215/-, made by the A.O, without properly appreciating the facts of the case and the material brought on record by the Assessing Officer. 4. Ground No. 1 & 2 are considered together. 5. During the course of assessment proceedings, A.O noticed that Assessee has claimed depreciation on the fixed assets. A.O noted that Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the depreciation in respect of machinery categorized as Effluent Treatment Plant which is eligible to depreciation @ 100% since category wise details (as per rules) were not provided, during assessment proceedings. The A.O. disallowed the depreciation amounting of Rs.-41150043/-. The appellant has filed an application for admission of additional evidence under rule 46A of I.T. Rules 1962 stating that it may be allowed to produce the Bills now because Bills are substantial pieces of evidence and in the interest of the justice, the appellant should be allowed to produce the same. The appellant has contended that show cause notice calling for various details including bills of additions to fixed assets exceeding Rs. 1.00 lac was issued by the A.O only on 16/11/2009 which was received after 2-3 days by the assessee in normal course. It is reiterated that the assessee was required to file many other details also and the time available was only 30 days. It was not possible for the assessee to file each and every bill as called upon by the A.O., in such short span of time allowed. The Affidavit of the Accountant Mr. Shailesh Kaiaria has been filed and put on the record. 2.6.1 The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of random verification of voluminous invoices filed by the asessee. The A.O. has further stated that simply by examining the invoices, it cannot be proved that machinery was in fact installed and was put to use. 2.6.5 The appellant has submitted the explanation to the Remand report. The Ld. A.R. submitted that the appellant has already filed the relevant certificate of its ETP Engineer before the A.O. mentioning the category wise Effluent treatment equipments installed by it during the year. In connection with the satisfaction of the user condition, the appellant has stated that in the original assessment order there is no finding of the A.O that the machinery was not put to use during the year. The disallowance of depreciation is only in respect of machinery components, the invoices of which, were not produced before A.O. Even during the remand Report proceedings no specific show cause notice was issued to the assessee asking whether the machinery & Building was put to use or not. The appellant has submitted before me that whatever details were called for were produced before the A.O. to enable her to submit the report. 2.6.6. The appellant also drawn my attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed no error in law in considering additional evidence at appellate stage - Held, yes. I also find that in v:ew of invoices being voluminous, time of 30 days to produce the copies of such invoices cannot be considered as sufficient as the assessee was required to file many other details also along with the Bills called for. Thus the sufficient opportunity was not given. In any case, here the issue involved is regarding allowance of depreciation which is statutory allowance and is to be allowed at a correct figure of investment in fixed assets. In view of this, it is necessary to admit the evidence to disposeoff the case, properly. In such cases, in view of Section 250 (5) I have got ample power to collect the necessary material and evidences which are necessary to dispose-off the case. I find that evidences now being produced are very much essential to dispose-off the case and to reach at the conclusion in effective manner. I therefore, admit the additional evidence produced during appellant proceedings. The reliance placed by the appellant on the case of Pari Mangaldas Ratilal rendered by Hon'ble Gujarat High Court 1977 CTR 647 Guj. and the recent unreported decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow the depreciation at the rate of 100% on the same accordingly. As such this ground of appeal is allowed. 6. Aggrieved by the aforesaid order of ld. CIT(A), Revenue is now in appeal before us. 7. Before us, ld. D.R. pointed to the findings of A.O and he further submitted that ld. CIT(A) was not justified in admitting additional evidence in violation of provisions of Rule 46A. He thus supported the order of A.O. On the other hand ld. A.R. reiterated the submissions made before ld. CIT(A) and supported his order. 8. We have heard the rival submissions and perused the material on record. We find that ld. CIT(A) for the reasons spelt out on the order and after relying on the decisions cited, admitted additional evidence under Rule 46A. Before us, ld. D.R. could not point out the illegality in admission of additional evidence by him. We further find that ld. CIT(A) after considering the submissions of the Assessee and other material on record has deleted his additions by a well reasoned and detailed order. Before us, Revenue has not brought any material on record to controvert the findings of ld. CIT(A). In view of the aforesaid facts, we find no reason to interfere with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of A.O. On the other hand ld. A.R. reiterated the submissions made before ld. CIT(A) and supported his order. 12. We have heard the rival submissions and perused the material on record. We find that while deleting the disallowance made by A.O, ld. CIT(A) has noted that identical disallowance made by the A.O in earlier years was deleted by CIT(A) and order of ld. CIT(A) was also confirmed by Hon'ble Tribunal. Before us, Revenue has not brought any material on record to controvert the findings of ld. CIT(A) nor has brought any distinguishing feature of the case for the year under consideration with that of earlier years. We therefore find no reason to interfere with the order of ld. CIT(A) and thus this ground of Revenue is dismissed. Ground No. 4 is with respect to deletion of disallowance of claim u/s. 80IA of the Act. 13. During the course of assessment proceedings, A.O noticed that Assessee has claimed deduction of Rs. 1,56,87,215/- u/s. 80IA of the Act with respect to the generation of power and income from steam. A.O noticed that energy generated from steam has been considered as generation of power. He also noticed that the steam energy was used for captive cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Captive power plant, the value of the steam generated and used in the manufacturing process in other unit is to be taken into account. The SLP from the said decision has been dismissed by the Hon'ble Apex Court. In view of this decision, the disallowance cannot be made on the alleged and the imaginary intention of the legislature. If there is any ambiguity in law then only other tools of interpretation such as Finance Minister's speech etc. are to be referred to. Respectfully following the decisions of ITAT Benches end also the unreported decisions of Hon'ble Madras High Court referred to in the decision of D.C.W. LTD. (SUPRA) Mumbai Tribunal, I allow the deduction u/s. 80IA as claimed by the appellant. As such this ground of appeal is allowed. 14. Aggrieved by the aforesaid order of ld. CIT(A), Revenue is now in appeal before us. 15. Before us, ld. D.R. supported the order of A.O. On the other hand ld. A.R. reiterated the submissions made before A.O. & CIT(A) and further placed reliance on the decision at Mumbai Tribunal in the case of West Coast Paper Mills Ltd. vs. ACIT (2014) 52 Taxman.com 268 (Mum Tribunal) and also placed on record the copy of the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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