2014 (4) TMI 202 - AT - Income Tax

Depreciation - Deletion of disallowance made by A.O. on account of higher rate of depreciation on civil work for foundation, electrical equipments and evacuation charges relating to wind mill Held, that - Issue is covered in favour of assessee in ACIT, Circle-1, Udaipur Versus M/s. Pyrotech Electronics Pvt. Ltd. 2014 (4) TMI 180 - ITAT JODHPUR for A.Y. 2009-10 vide order dated 24/01/2013 - CIT (Appeals), Udaipur against each addition made by AO, on basis of which impugned order under appeal was passed by Ld. CIT (Appeals), Udaipur in this case - all the above items are part and parcel of the Wind Mills Decided in favor of Assessee. Deletion of disallowance of service tax expenses despite fact that expenditure pertains to earlier years Held that - admitted fact that liability of service tax, which were claimed as expenditure in year under consideration, although pertained to earlier year, but it was settled during year under consideration - As liability was crystallized and paid during year under consideration, it was allowable as expenditure - Therefore do not see any infirmity in order of learned CIT(A) Appeal decided against Department.

Issues Involved:
1. Deleting the disallowance on account of higher rate of depreciation claimed on civil work for foundation, electrical equipment, and evacuation charges related to the windmill.
2. Deleting the disallowance of service tax expenses pertaining to earlier years.

Issue-wise Detailed Analysis:

1. Deleting the Disallowance on Account of Higher Rate of Depreciation:
The first issue pertains to the deletion of disallowance made by the Assessing Officer (AO) regarding the higher rate of depreciation claimed on civil work for foundation, electrical equipment, and evacuation charges related to the windmill.

The assessee's counsel argued that this issue was already covered in the assessee's favor in a previous case (ITA No. 294/Jodh/2012 for A.Y. 2009-10) decided on 24/01/2013. The counsel provided a copy of the said order. The Departmental Representative (D.R.) did not counter the assessee's contention.

The Tribunal, after considering the submissions and material available, noted that a similar issue with identical facts had been decided in favor of the assessee in the preceding year. The relevant findings from the previous decision were reiterated, emphasizing that:
- The CIT(A) had discussed the issue in detail and appreciated the arguments, evidence, and facts correctly.
- The items in question were considered part and parcel of the windmill.
- The deletion made by the CIT(A) was legal and aligned with the judgments cited during the appeal proceedings.

Consequently, the Tribunal found no merit in the department's appeal on this issue and upheld the CIT(A)'s decision to delete the disallowance.

2. Deleting the Disallowance of Service Tax Expenses:
The second issue concerns the deletion of disallowance of service tax expenses amounting to Rs. 8,57,261/-, which pertained to earlier years.

The AO had noticed that the assessee had debited Rs. 16,39,407/- for service tax on foreign commission income, which included Rs. 8,57,261/- from previous years. The AO disallowed this amount.

The assessee argued that:
- The liability to pay service tax arose because the service tax was not separately charged on services provided to foreign customers.
- The payment of service tax was made during the year under consideration and debited to the profit & loss account.
- The expenditure was incurred wholly and exclusively for business purposes and was allowable in the year of payment.
- The service tax liability was settled during the year under consideration, and hence, the expenditure was claimed in the year of payment.

The CIT(A) observed that the AO was not justified in disallowing the expenditure based on the year-wise income declaration. The CIT(A) noted that the service tax payments were statutory dues, allowable under the Act, and the liability was crystallized and paid during the year under consideration. Thus, the CIT(A) deleted the addition made by the AO.

The Tribunal, after considering the submissions and material on record, agreed with the CIT(A)'s findings. It was established that the liability, although pertaining to earlier years, was settled and crystallized during the year under consideration, making it allowable as an expenditure.

Therefore, the Tribunal found no infirmity in the CIT(A)'s order and upheld the deletion of the disallowance of service tax expenses.

Conclusion:
The appeal of the department was dismissed, and the decisions of the CIT(A) regarding both issues were upheld. The Tribunal confirmed the deletion of disallowances related to the higher rate of depreciation on windmill-related assets and the service tax expenses. The judgment emphasized the consistency in the application of legal principles and factual findings from previous cases.

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