TMI Blog2013 (6) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... t filing of audit report along with return are not mandatory but directory and if the audit report is filed at any time before framing of assessment, then requirement of section 80-IA would be met. The CIT(A) ought to have noted that section 80-IA(7) says that the deduction under sub-section(1) from profits and gains derived from an (undertaking) shall not be admissible unless the accounts of the (undertaking) for the previous year relevant to the assessment year for which the deduction is claimed have been audited by an accountant, as defined in the Explanation below sub-section(2) of section 288, and the assessee furnishes, along with his return of income, the report of such audit in the prescribed form duly signed and verified by such accountant. 2.2. The decision of the Commissioner of Incometax( Appeals) is supported by the judgments of the Hon ble High Courts of Delhi and Karnataka. The Hon ble Delhi High Court in the case of CIT vs. Contimeters Electrical Pvt. Ltd., 178 Taxman 422, and the Hon ble Karnataka High Court in the case of CIT vs. ACE Multitaxes Systems Pvt. Ltd., 317 ITR 207, have held that the provisions of section 80-IA(7) requiring filing of audit report a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the above details furnished before the Assessing Officer, the assessee-company contended that depreciation allowance should be allowed at 80% for the windmills. 3.5. But, the Assessing Officer observed that for machines such as transformers, breakers and CTPT, depreciation is allowable only at 15%, as these machines are independent of windmills. He held that whether they are installed with windmills or elsewhere, the functions of those items remain the same. He, therefore, held that only for the reason that these machines are installed/attached to the windmill, the assessee cannot claim depreciation at a higher rate of 80%. Relying on the judgment of the Hon ble Madras High Court in the case of CIT vs. Adar Tea Products Co., 178 Taxman 126, the Assessing Officer rejected the rectification petition filed by the assessee-company. 3.6. The orders of the Assessing Officer dismissing the rectification petition filed by the assessee-company were taken in first appeal before the Commissioner of Income-tax(Appeals) in ITA No.410/2011-12. 3.7. While considering the appeal filed by the assesseecompany, the Commissioner of Income-tax(Appeals) found that the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) themselves showed that the matter required roving enquiries and required application of mind and in such circumstances the issue cannot be treated as a mistake rectifiable under section 154 of the Income-tax Act, 1961. 3.11. Shri V.Jagadisan, the learned chartered accountant appearing for the assessee-company, on the other hand, contended that the arguments advanced by the revenue are only technical for the reason that the issue of rate of depreciation has already been decided by the Commissioner of Incometax( Appeals) in his order passed in the appeal filed by the assessee against the quantum assessment completed under section 143(3) of the Act. The learned chartered accountant has stated that the Commissioner of Income-tax(Appeals) has considered both the appeals filed by the assessee - appeal filed against the 143(3) assessment order and the appeal filed against the order under section 154 of the Act - in a common order. Therefore, the Commissioner of Income-tax(Appeals) seems to have considered all the grounds raised by the assessee simultaneously and held on merit that the items pointed out by the Assessing Officer are entitled for depreciation at the same rate applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue was also decided by the Commissioner of Income-tax(Appeals) in favour of the assessee. The fourth issue considered by the Commissioner of Income-tax(Appeals) was the disallowance of mines road maintenance expenditure. This issue was also decided in favour of the assessee. The last point determined by the Commissioner of Income-tax(Appeals) in the said appeal was the difference in TDS credit. This was also decided by the Commissioner of Income-tax(Appeals) in favour of the assessee, but after verifying the figures and details. 3.13. Ongoing through the order of the Commissioner of Income-tax(Appeals) passed in the case of the assessment completed under section 143(3), we do not find any case of the Commissioner of Income-tax(Appeals) having considered the question of granting depreciation at a higher rate. 3.14. On the other hand, in ITA No.410/2011-12 against section 154 order, the only ground considered by the Commissioner of Income-tax(Appeals) was the disallowance of a portion of depreciation. 3.15. The above situation clearly shows that both the appeals have been independently considered by the Commissioner of Income-tax(Appeals) based on the grounds of appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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