TMI Blog2022 (5) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... R ould not bring any material before us so as to take a contrary view than the view taken by the ld. CIT(A) on this issue. We, therefore, do not find any infirmity in the order of the Id. CIT(A) directing the Assessing Officer to delete the various additions/disallowances for computation of book profit u/s 115JB of the I.T. Act. We, therefore, uphold the order of the Id. CIT(A) on this issue and the grounds raised by the Revenue are dismissed. Additional depreciation on plant and machinery claimed under Section 32(1)(iia) - HELD THAT:- We have perused the assessee s own case while dealing with the same issue for the assessment years 2006-07 to 2009 held that the amendment which has been brought in by the Finance (No.2) Act, 2012 e.w.f. assessment year 2013-14 whereby the assessee engaged in the business of generation or distribution of power have specifically been included and held eligible for claim of additional depreciation. It has been held by the Co-ordinate Benches of the Tribunal that even prior to the amendment brought in by the Finance Act. 2012, the assessee s engaged in generation or generation or distribution of electricity were held to be eligible for additional d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the disallowance of Rs. 5,38,95,043/- on account of excess deduction claimed u/s 80IA(8) of the Act, deleted the addition of Rs. 69,89,846/- on account of depreciation made while calculating books profit u/s 115JB of the Act. Further, upheld the action of Assessing Officer in making addition of Rs.9,46,866/- on account of additional depreciation u/s 32(1) (iia) of the Act. 4. Aggrieved by the above deletion made by the CIT (A), the Department has filed the appeal in ITA No.5548/Del/2017 on following grounds: 1. Whether on facts and in circumstances of the case, the Ld.CIT(A) is legally justified in deleting disallowance of Rs.5,38,95,043/- on account of excess deduction claimed u/s. 80IA(8) of the Income- Tax Act, 1961 (the Act) without considering the facts recorded by the AO in assessment order and without recording his clear findings regarding allowing relief to the assessee in appellate order? 2. Whether on facts and in circumstances of the case, the Ld.CIT(A) is legally justified in deleting the addition of Rs.69,89,846/- on account of disallowance of depreciation made while calculating Book Profit u/s. 115JB of the Act by ignoring clause (g) to Explanation 1 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory building in the books of accounts instead of disclosing the same as plant and machinery , since the same formed a profit earning apparatus for the appellant. 6. The Ground No.1 of the Revenue is on deletion of the disallowance on account of deduction claimed to have been made under Section 80IA(8) of the Act. 7. The learned Departmental Representative contended that the CIT(A) committed an error in deleting the disallowance on account of deduction claimed to have been made under Section 80IA(8) of the Act and relied on the Assessment Order. 8. Per contra, the learned counsel for the assessee submitted that, the issue of deduction claimed under Section 80IA(8) of the Act is recurring one, this Tribunal as well as Hon'ble Delhi High Court have already decided the issue in favour of the assessee for the assessment years 2006-07 to 2009- 10, 2013-14 and 2014-2015 and relied on the following decisions: i) Nalwa Steel Power Ltd. vs. DCIT, in ITA No.4449/Del/2010 order dated 24/04/2018 passed by Delhi ITAT for assessment years 2006-07 to 2009-10; ii) ITA No. 211/2019 decided by the Hon'ble Delhi High Court in the case of PCIT vs. Nalwa Steel and Power Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IEX rate but, the DRP has not given any reason for adopting the said rate. The Tribunal in assessee s own case held as under in A.Y. 2009-10: 59. We have considered the rival arguments made by both the sides and perused the material available on record. We have also considered the various decisions cited before us. The only issue to be decided in the impugned ground is regarding the action of the Assessing Officer in excluding Rs.0.2932/- per unit while computing the market price of power for the purposes of computing deduction admissible to power units u/s 80-1A of the I.T. Act. We find the assessee in the instant case has sold the electricity to its captive plant at the rate of Rs.3.92 per unit i.e. rate at which CSEB was selling to industrial consumers as on 01.04.2008. The above rate of Rs.3.92 included electricity duty at the rate of 8% of energy charges and cess of Rs.0.05 paise per unit. Since according to the Assessing Officer, the assessee has not been making actual sales to its other units because the power generated is consumed captively by other units. According to him, since the assessee is only generating power but it does not have the licence to distribute it, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to the notice of the Id. CIT(A), according to which, the Assessing Officer has limited power of making additions and reductions only to the extent provided in Explanation to section 115J of the IT. Act. 31. Based on the argument advanced by the assessee, Id. CIT(A) directed the Assessing Officer to delete the additions made to the book profit by observing as under:- 6.2 1 have considered the submission made by the authorized representative of the appellant company. I do agree with the contentions of the Ld. AR that the assessing officer has very limited powers to make adjustments in the profit and loss account of the assessee. The adjustments can be made to the profit and loss account as provided in Explanation to section 115JB of the Act and except this, the assessing officer cannot make any additions to the P L account. In view of the Supreme Court decision in the case of Apollo Tyres Ltd. (supra), / direct the assessing officer to delete the additions representing the disallowance on 'excess depreciation on UPS/ electrical installation/disallowance of additional depreciation on electrical installation/disallowance additional depreciation on assets acquired p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of section 31(1)(iia) of the Act and further submitted that, the said issue has already been decided in favour of the assessee in assessee s own case for the earlier and subsequent years. 21. Per contra, the learned Departmental Representative has relied on the order of the learned Commissioner of Income-Tax(Appeals) and submitted that orders of the Assessing Officer and the learned Commissioner of Income-Tax(Appeals) are well reasoned which require no interference by this Tribunal. 22. We have heard the learned counsel for the assessee and the learned Departmental Representative at length. We have perused the assessee s own case while dealing with the same issue for the assessment years 2006-07 to 2009 in ITA No. 449/Del/2010, dated 24/04/2018, wherein the Co-ordinate Bench of this Tribunal held as under: 74. After hearing both the sides, we find the ld.CIT(A) upheld the action of the Assessing Officer in disallowing of Rs.33,39,892 claimed by the assessee on account of additional depreciation u/s. 32(1)(iia) on electrical installation on the ground that the production/general of power by the assessee does not quality as manufacture/production of an articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that, the Assessing Officer has not assigned reasons and no findings have been given on the claim raised by the assessee during the assessment proceedings on the letter dated 11/11/2013 filed by the Assessee. 27. The assessee has claimed that railway sidings were used by the assessee for transporting raw-material machinery etc. to the Plant-2 Raigarh. Further claimed that the same has been used for the purpose of the business and depreciation has been claimed. The case of the assessee is that the assessee had inadvertently shown it under factory building and claimed 10% depreciation. However, railway sidings were used for the purpose of the business and the assessee is entitled for depreciation of 15%. Though, the claim was raised during the course of assessment proceedings, no finding has been given by the Assessing Officer. 28. Further, the learned counsel for the assessee has relied on the judgment of the Hon'ble Supreme Court in the case of Wipro Finance Vs. CIT Civil Appeal No. 677 of 2008 dated 01.04.2022 wherein upheld the action of the assessee to raise the claim at the appellate stage. 29. We have heard the parties, perused the records and gave our though ..... X X X X Extracts X X X X X X X X Extracts X X X X
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