Income Tax Appellate Tribunal - Jaipur
Deputy Commissioner Of Income Tax, ... vs M/S. Venkateswara Wires Pvt. Ltd., ... on 16 July, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No. 53/JP/2018
fu/kZkj.k o"kZ@Assessment Year : 2012-13
The DCIT, cuke M/s Venkateswara Wires Pvt. Ltd.,
Circle-6, Vs. 302, Navjeewan Chamber,
Jaipur. Vinobha Marg, C-Scheme, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACV 5085 F
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Smt. Punam Rai (DCIT)
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s Assessee by : Shri S.L. Poddar (Adv.) &
Ms. Esha Kanungo (Adv.)
lquokbZ dh rkjh[k@ Date of Hearing : 05/07/2018
mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 16/07/2018
vkns'k@ ORDER
PER: VIJAY PAL RAO, J.M. This appeal by the Revenue is directed against the order dated 21.09.2017 of ld. CIT (A) for the assessment year 2012-13. The Revenue has raised the following ground:-
"(i) Whether on the facts in the circumstances of the case and in law the ld. CIT(A) is justified in deleting the addition of Rs.
23,855/-made by the AO for depositing the employee's ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
contribution to ESI/PF beyond the prescribed time limit provided in respective Acts.
(ii) Whether on the facts in the circumstances of the case and in law the ld. CIT(A) is justified in holding that employee's contribution to PF & ESI are governed by the provision of section 43B and not by section 36(1)(va) r.w.s. 2(24)(x) of the I.T. Act.
(iii) Whether on the facts in the circumstances of the case and in law the Id. CIT(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).
2 ITA No. 53/JP/2018DCIT v. M/s Venkateswara Wires Pvt. Ltd.
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 of Hon'ble jurisdiction High Court in case of CIT vs. State bank of Bikaner & Jaipur 99 DTR 131, CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd. 98 DTR 109 as well as the decision in case of CIT v/s Jaipur Vidyut Vitran Nigam Ltd. 98 DTR 105. The ld. CIT(A) has considered and decided this issue by following decisions of Hon'ble jurisdictional High Court in para 5.2 is as under:-
" 5.2. I have gone through the facts of the case, the AO's order and appellant's submissions. The AO made the addition of Rs. 23,855/- observing that the assessee failed to deposit the employee's contribution towards PF/ESI within due dates. The appellant has submitted that the position of law in this regard is settled with the decisions of the Hon'ble Jurisdictional High Court and ITAT as well as of the Hon'ble Apex Court wherein it has been held that payment of ESI/PF if made within the time allowed u/s 139(1) i.e. before filing of income are allowable. The appellant claimed that it had made payment within the grace period or before due date of filing of return of income, hence, the same is allowable deduction as per sec 43B of the Act. I have also gone through various judicial decisions on this issue and I find that the Hon'ble Supreme Court in case of CIT vs. Alom Extrusions Ltd. reported in 319 ITR 306 held that omission of second proviso to sec 43B and the amendment of first proviso by Finance Act, 2003, bringing about uniformity in payment of tax, duty, cess and fee on one hand and contribution to employees' 3 ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
welfare funds on the other, are curative in nature, and thus, effective retrospectively w.e.f. 1-4-88 i.e. the date of insertion of first proviso. It was further held that where Provident Fund and Employees State Insurance Contribution were paid by the assessee before filing of the return and proof of payment was submitted before the Assessing Officer, the amounts were deductible as deduction.
The Hon'ble Delhi High Court in case of CIT vs. Aimil Ltd & Ors. reported in 321 ITR 508 held as under:-
"As soon as employees' contribution towards PF or ESI is received by the assessee by way of deduction or otherwise from the salary/ wages of the employees, it will be treated as 'income' at the hands of the assessee. It clearly follows there from that if the assessee does not deposit this contribution with PF/ESI authorities, it will be tax as income at the hands of the 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 4 ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
Sharma (2007) 213 CTR (del) 609 : (2008) 297 ITR 320 (Del) and CIT vs. P. M. Electronics Ltd. (2008) 220 CTR (del) 635 : (2008) 15 DTR (del) 258 followed."
Apart from the above decisions, the following decisions are also applicable on the issue at hand:-
i. Dy CIT vs. Orbit Resorts (P) Ltd (48 SOT 23 (URO) ii. ACIT vs. Ranabaxy Laboratories Ltd. (2011) 7 ITR (Trib) 161 (DLH) iii. ACIT vs. M/s. Anil Special Steel Industries Ltd. (decision of Jaipur Bench in ITA No. 1100/JP/2011) From the above decisions, it is clear that payment or contribution made to the provident fund authority any time before filing of the return for the year in which the liability to pay accrued is an allowable expenditure. Likewise, in the present case, the employees' contribution was deposited by the appellant before due date for filing of return of income, therefore, in view of the decision of the Hon'ble Supreme Court and decision of Delhi High Court, the payment made before due date for filing of return of income is allowable. The AO is directed to delete the addition of Rs. 23,855/- made on this account. This ground is allowed.
No contrary binding precedent has been brought to our notice by the Revenue. Therefore, in view of the binding precedent on the issue we do not find any error or illegality in the order of the ld. CIT(A) qua this issue.
4. Ground No. (iii) is regarding disallowance of deduction U/s 80IA on the ground that the assessee did not file the audit report in Form 5 ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
No. 10CCB along with return of income U/s 139(1). The ld. DR has submitted that it is a mandatory requiring for claiming deduction U/s 80IA of the Act. The assessee should file audit report in Form 10CCB along with return of income filed U/s 139(1) of the Act. The assessee did not filed the said audit report and therefore, the assessee did not claim deduction U/s 80IA of the Act in the original return of income.
However, subsequently the assessee filed revised return of income and the audit report in form No. 10CCB was filed only along with revised return of income. The ld. DR has also referred to Section 80AC as well as Section 80IA(7) of the IT Act and submitted that the claim of deduction cannot be allowed if it is not claimed in the original return of income filed U/s 139(1) of the Act. She has relied upon the order of the Assessing Officer.
5. On the other hand, the ld. AR of the assessee has supported 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 ITA No. 53/JP/2018DCIT v. M/s Venkateswara Wires Pvt. Ltd.
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. The Hon'ble jurisdictional High Court in case of CIT vs. Rajasthan Fasteners (P) Ltd. (supra) has considered this issue and held in paras 8 to 18 as under:-
8. We have heard ld. Counsel for the Revenue and gone through the orders passed by the authorities below.
9. It would be fruitful to quote Sec. 80A(5) of the IT Act, which provides as under:-
"80A(1) " " " " " "
(2) " " " " " "
7
ITA No. 53/JP/2018
DCIT v. M/s Venkateswara Wires Pvt. Ltd.
(3) " " " " " "
(4) " " " " " "
(5)Where the assessee fails to make a claim in his return of income for any deduction under section 10A or section 10AA or section 10B or section 10BA or under any provision of this Chapter under the heading "C___Deductions in respect of certain incomes," no deduction shall be allowed to him thereunder."
10.In our view, the decision of the Apex Court in the case of Goetze (India) Ltd. *supra), relied upon by ld. counsel for the revenue, rather supports the case of the assessee, than of revenue as the Hon'ble Apex Court has observed as under:-
"The decision does not in any way relate to the power of the assessing officer to entertain a claim for deduction otherwise than by filing a revised return. In the circumstances of the case, we dismiss the civil appeal. However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income Tax Appellate Tribunal under section 254 of the Income Tax Act, 1961."
11.On perusal of the above, in our view, though the assessing authority had no power but the appellate authorities did have power and therefore, for this reason also, in our view, the judgment (Goetze (India) Ltd. (supra) supports the case of the assessee rather than the revenue.
12.The Hon'ble Delhi High Court in the case of CIT Vs. Jai Prabolic Springs Ltd.: (2008) 306 ITR 42 (Delhi), held as under:-
"12.As clear from the above said facts, there is no dispute that customer introduction charges did not represent revenue expenditure. The principal ground taken by the Revenue in this 8 ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
appeal is that if no claim for deduction of the amount was made in the return of income, then deduction would not be allowed.
13.Section 254 of the Act says that the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.
14.Reference may be made to National Thermal 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 provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate 9 ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered in its own facts. The Appellate Assistant Commissioner must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. The Appellate Assistant Commissioner should exercise his discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. The same observations would apply to appeals before the Tribunal also.
14.The Bombay High Court in the case of CIT Vs. Pruthvi Brokers & Shareholders Pvt. Ltd.:(2012) 349 ITR 336 (Bom.) has held as under:-
"1.It is important to note two things. Firstly, the respondent is entitled to the deduction claimed. Secondly, the respondent made the claim not only before the Assessing Officer, but also independently before the CIT (Appeals) and the Tribunal. The question that arises in this appeal is whether the CIT (Appeals) and/or the ITAT had the jurisdiction to consider a new/additional claim/deduction subsequently raised before the Assessing Officer which, through inadvertence, was not claimed in the return of income filed by the respondent.
The question is answered in the affirmative by several judgments.
We find well founded, Mr.Mistri's submission that even assuming that the Assessing Officer is not entitled to grant a deduction on the basis of a letter requesting an amendment to the return filed, the appellate authorities are entitled to consider the claim and to adjudicate the same."10 ITA No. 53/JP/2018
DCIT v. M/s Venkateswara Wires Pvt. Ltd.
15.Hon'ble Bombay High Court, in the case of Sanchit Software and Solutions (P) Ltd. Vs. CIT: (2012) 349 ITR (Bom.) has held as under:-
Income Tax Deptt. Can't take advantage of assessee's mistakes in not claiming exemption in IT return and not deny him exemption. The entire object of administration of tax is to secure the revenue for the development 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 e- filing 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 computation of income claiming deduction u/s 10B of the IT Act vide letter dt. 13/12/2010 before the AO. Not only this, the assessee also filed copy of ARE-1 duly sealed and signed by the custom authorities in respect of the exports having taken place. For evidencing realization of export bills, the statement of outstanding export bills from Andhra Bank as on 31/08/2008 showing the export bills outstanding for realization as on that date was also submitted. From the 11 ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
statement of outstanding export bills as confirmed by the Andhra Bank, it was clear that no bill prior to the date of March, 2008 had been shown as outstanding for realization. It is an admitted fact that since assessment year 2004-05, the assessee did not have any taxable income after adjusting unabsorbed depreciationand therefore tax was being paid u/s 115J and therefore the deduction u/s 10B was being claimed in computation of income. In our view, the mentioning of Sec.80IB was only clerical mistake and with all fairness as per the facts & circumstances and as per the previous claims in tax calculation u/s 115J, the assessee was legally entitled for this benefit. It was also admitted that the assessee had neither changed/revised the financial statements nor tax audit report (Form 3CD) originally filed by it. The assessee had only submitted audit report in Form 56G which was not enclosed with the return in view of provision of Rule 12 of the IT Rules. The purpose of audit report in Form 56G is totally different than the purpose of audit report in Form 3CA annexed with Form 3CD.It is also an admitted fact that the financial statement also remained the same. In our view, thespirit behind this statement must be that the assessee should have claimed the exemption in his return and filed the same within due date and in the instant case, the assessee on the facts available on record clearly shows that the claim was duly made but section was inadvertently wrongly mentioned and this fact came to the notice of the assessee at a later point of time when pointed out by the AO. In our view, the purpose of assessment proceedings before the taxing authorities was to assess the income correctly and the tax liability of an assessee in accordance with law. If such clerical mistake occurred, then in our view, the AO was duty bound to inform the assessee that this claim is wrongly claimed and that one may claim exemption 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 12 ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
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, there appears to be no reason as to why the appellate authority could not modify the assessment order on an additional ground even if not raised before the Income Tax Officer. No exception could be taken to this view as the Act does not place any restriction or limitation on the exercise of appellate power. Even otherwise, an appellate authority, while hearing an appeal against the order of a subordinate authority, had all the powers which the original authority might have in deciding the question before it subject to the restrictions or limitation, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority was vested with all the plenary powers which the subordinate authority might have in the matter.As the assessee has filed a revised computation, in our view, it holds good as except the change of Section from 80IB to 10B, all other supporting material remained the same including the audit report claiming such exemption. The Bombay High Court in the case of CIT Vs. Prabhu Steel Industries (P) Ltd. (191 ITR 530) held that where a claim for special deduction was made by the assessee not in his return but in the course of the assessment proceedings 13 ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
and the AO failed to consider the same, it was open to the appellate authority to entertain the claim. The Hon'ble Apex Court in the case of CIT Vs. Kanpur Coal Syndicate (53 ITR 225) observed that the power of the CIT(A) sitting in appeal over an assessment were plenary and co-terminus with those of the AO and that he can do what the ITO can do and also direct him to do what he has failed to do and in our view, the CIT(A) indeed has powers to examine the assessee's claim on merits by virtue of Sec.250(5). In that case, the claim was first time made under Sec.80HHC before the CIT(A) and accordingly no infirmity was found by the Hon'ble Apex Court in grant of deduction u/s 80HHC. The Punjab & Haryana High Court in the case of Ramco International, reported in 332 ITR 306, where the assessee claimed deduction u/s 80IB of the IT Act although furnished Form 10CCB, it was held that even where there was a claim by way of an application without filing a revised return and in such a situation, deduction could not be disallowed.
18.In view of the above, we are of the considered view tha once the assessee was found eligible for an exemption u/s 10B, it having 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 14 ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
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 dated 18.07.2008 in ITA No. 745/JP/2007.
8. Before us, the ld. DR has submitted that the AO has segregating the items which are eligible depreciation @ 10% and 15% and not @ 80%. Therefore, the civil work and other buildings like control room for windmill cannot be regarded as part of the windmill eligible rate for higher rate of depreciation. He has relied upon the order of the Assessing Officer.
9. On the other hand, the ld. AR has supported the order of the ld.
CIT(A) and has also relied on the decision of Hon'ble jurisdictional High Court in case of Pr. CIT vs. M/s Gangaur Exports Pvt. Ltd. dated 22.05.2017 in D.B. ITA No. 14/2017.
15 ITA No. 53/JP/2018DCIT v. M/s Venkateswara Wires Pvt. Ltd.
10. We have considered the rival submissions as well as the relevant materials on record. The AO has not disputed the depreciation @ 80% on the windmill however, the AO has segregated some part of the windmill as civil work and other electric fitting and allowed the depreciation @ 10% and 15% respectively. It is pertinent to note that the civil construction and electric fittings which are part and parcel of the windmill and have no other used then for the proper functioning of the windmill. Therefore, all the foundations and other fittings which are essential for the proper functioning of the windmill as an integral part of the windmill cannot be segregated from the windmill itself which is an apparatus comparing of all these essential civil structure and other electric fittings. Even otherwise without foundation and civil work the installation of windmill is not possible and therefore, these parts such as civil structure, electric fittings etc. which are essential for installation and functioning of the windmill would be considered as part and parcel of the windmill for the purpose of depreciation U/s 32 of the IT Act. The Hon'ble Jurisdictional High Court in case of Pr. CIT vs. M/s Gangaur Exports Pvt. Ltd.(supra) has considered an identical issue in para 3 to 5 as under:-
"3. Heard learned counsel for the parties.16 ITA No. 53/JP/2018
DCIT v. M/s Venkateswara Wires Pvt. Ltd.
4. Counsel for the respondent contended that issue is squarely covered by the decision of this Court in Tax Appeal No. 53/2012 (CIT vs. K.K. Enterprises), decided on 18th Jauly, 2014 wherein this Court observed as under:-
" The issue involved in these appeals has been considered by the Hon'ble Gujarat High Court in Tax Appeal No. 604/2012, decided on 29.01.2013, in Commissioner of Income Tax, Ahmedabad-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 windmill and cannot be separated from the same. The assessee claim for higher depreciation on such investment was, therefore, rightly allowed."
5. In view of the above, the issue is required to be decided in favour of the assessee against the department."
Accordingly, in view of the above facts and circumstances of the case as well as binding precedent of the Hon'ble Jurisdictional High Court we do 17 ITA No. 53/JP/2018 DCIT v. M/s Venkateswara Wires Pvt. Ltd.
not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue.
In the result, the appeal of the Revenue is dismissed.
Order pronounced in the open court on 16/07/2018.
Sd/- Sd/-
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(Vikram Singh Yadav) (Vijay Pal Rao)
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 16/07/2018.
*Santosh.
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- DCIT, Circle-6, Jaipur.
2. izR;FkhZ@ The Respondent- M/s Venkateswara Wires Pvt. Ltd., Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur.
6. xkMZ QkbZy@ Guard File {ITA No. 53/JP/2018} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar 18