2016 (9) TMI 1045 - AT - Income Tax

Revision u/s 263 - allowability of additional depreciation on windmill - Held that - The grounds mentioned by learned CIT in show-cause notice are different and the order passed by learned CIT u/s. 263 is based on another ground and therefore the assessee could not get opportunity to explain the point recorded at the time of passing the final order. Therefore we hold that the order passed by learned CIT u/s. 263 is bad in law and not sustainable in law. Therefore the same is quashed. Even otherwise on the merits of the case the ld. CIT(A) has held that this windmill was not used in any manufacturing activity. Therefore as per CIT this does not qualify for additional depreciation. From the afore mentioned reading we find that the only requirement of section is that the assessee should be engaged in the business of manufacture or production of any article or thing. This condition is clearly satisfied by the assessee who is engaged in the manufacture of pigments HDPE etc. A close reading of the provision brings out that there is no requirement that the windmill should be used in any manufacturing activity. However a windmill which generates power is itself engaged in the manufacturing of production of an article or thing. We found support from the judgement in the case of Associated Bearing Co. Ltd. vs. Commissioner of Income-tax (2005 (10) TMI 75 - BOMBAY High Court ) and Commissioner of Income Tax vs. Atlas Export Enterprise (2015 (3) TMI 846 - MADRAS HIGH COURT ). Therefore while relying upon the judgement we hold that the assessee clearly satisfied the conditions of section 31(1)(iia) and is entitled to the claim of additional depreciation in respect of wind mills. - Decided in favour of assessee

Summary

Issues Involved:
1. Jurisdiction and maintainability of the order under Section 263 of the Income Tax Act.
2. Eligibility for additional depreciation on windmill under Section 32(1)(iia).
3. Deduction under Section 10A for sundry receipts and balances written back.

Detailed Analysis:

Issue 1: Jurisdiction and Maintainability of the Order under Section 263
The primary issue addressed was whether the Commissioner of Income Tax (CIT) was justified in initiating revision proceedings under Section 263 of the Income Tax Act. The assessee argued that the CIT's initiation of revision proceedings and the subsequent order were illegal and invalid. The CIT had issued a show-cause notice stating that additional depreciation on a windmill was incorrectly allowed and that certain profits were not derived from exports and therefore not eligible for deduction under Section 10A. The assessee contended that the grounds mentioned in the show-cause notice were different from those in the final order, which focused on the lack of inquiry by the Assessing Officer (AO). The Tribunal found that the CIT's final order was based on a different ground from the show-cause notice, thus violating the principle that a revisional order can only be passed on grounds for which the assessee has been given a reasonable opportunity to be heard. This inconsistency rendered the order under Section 263 unsustainable.

Issue 2: Eligibility for Additional Depreciation on Windmill under Section 32(1)(iia)
The CIT had held that the windmill did not qualify for additional depreciation as it was not used in any manufacturing activity. The assessee argued that the only requirement under Section 32(1)(iia) is that the assessee should be engaged in the business of manufacturing or production of any article or thing, which they were. The Tribunal agreed with the assessee, stating that there is no requirement in the provision that the windmill must be used in manufacturing activity. The Tribunal cited judgments from the Bombay High Court and the Madras High Court, which supported the view that a windmill generating power is itself engaged in the production of an article or thing. Therefore, the assessee was entitled to claim additional depreciation on the windmill.

Issue 3: Deduction under Section 10A for Sundry Receipts and Balances Written Back
The CIT had also held that certain profits, including sundry receipts and balances written back, were not derived from exports and thus not eligible for deduction under Section 10A. The assessee contended that these items were either an accretion to sales or a reduction in expenditure and should be considered as derived from the export of computer software. The Tribunal noted that the AO had not conducted any inquiry into these items before allowing the deduction. However, since the Tribunal had already decided that the order under Section 263 was not maintainable, there was no need to address this issue further.

Conclusion:
The Tribunal quashed the order passed by the CIT under Section 263, holding it to be bad in law and not sustainable. The appeal was allowed in favor of the assessee. The Tribunal also affirmed that the assessee was entitled to additional depreciation on the windmill under Section 32(1)(iia) and did not need to address the issue of deduction under Section 10A due to the primary decision on jurisdiction.