2015 (12) TMI 122

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..... er building or furniture and fittings constitute “plant” and to clarify the intention of the statute such amendment has been brought. Such amendment brought into the statute by the legislature has not been shown to be violative of constitutional provision. Therefore, according to clear legislative intent the assessee cannot take the benefit of higher depreciation by including building in the value of “plant”. - Decided against assessee.
SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA , ACCOUNTANT MEMBER For The Appellant by : Shri Rashmikant C. Modi For The Respondent by : Shri Pawan Kumar Beerla ORDER PER I.P.BANSAL, J.M: This is an appeal filed by the assessee and it is directed against order passed by Ld. CIT(A)-39,Mumbai dated 17/12/2012 for assessment year 2009-10. Grounds of appeal read as under: "1. Addition to Plant and Machinery treated as addition to Building and Furniture: On the facts and circumstances of the case, it is submitted that the Hon. Commissioner of Income Tax Appeals, Mumbai erred in treating the additions made to Plant & Machinery as additions made to Building and Furniture. The Appellant submits that additions be treated as additions mad .....

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..... Aeolus Technovations P Ltd. 231293 23.06.08 Aeolus Technovations P Ltd. 467017 02.07.08 Aeolus Technovations P Ltd. 416315 03.07.08 Aeolus Technovations P Ltd. 13854.2 24.07.08 Raj Enterprises (New) 37166 09.08.08 Jawadwalas Constructions P Ltd. 203492 26.08.08 Aeolus Technovations P Ltd. 900005 26.08.08 Aeolus Technovations P Ltd. 512656 26.08.08 Aeolus Technovations P Ltd. 82743 26.08.08 Aeolus Technovations P Ltd. 395249 01.08.08 Sai Electrc 89250 01.09.08 Aeolus Technovations P Ltd. 548773 01.09.08 Aeolus Technovations P Ltd. 160957 01.09.08 Aeolus Technovations P Ltd. 724443 03.10.08 Aeolus Technovations P Ltd. 637455 03.11.08 Aeolus Technovations P Ltd. 150914 12.11.08 Aeolus Technovations P Ltd. 493996 8121168 KSEZ 05.05.08 Aeolus Technovations P Ltd. 357328 11.06.08 Sallone & Parco Engineering Co. 583190 19.06.08 Aeolus Technovations P Ltd. 272249.5 19.06.08 Aeolus Technovations P Ltd. 386191 19.06.08 Aeolus Technovations P Ltd. 285205 19.06.08 Aeolus Technovations P Ltd. 140474 19.06.08 Aeolus Technovations P Ltd. 111580 19.06.08 Aeolus Technovations P Ltd. 54965 2191182 The aforementioned claim .....

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..... e should be considered to be incurred in relation to "plant and machinery" and depreciation rate applicable to "plant and machinery" should be allowed. 3.1 Ld. AR relied upon the decision of Ahmedabad ITAT in the case of Madhu Industries Ltd. vs. ITO, order dated 23/7/2010 in ITA No.4172/Ahd/2007. Copy of this order was placed on our record and also given to Ld. DR, wherein electrical installations consisting of electrical wires, plugs, cables, MC Box and electrical items which does not function independently were considered to be part of "plant and machinery" and accordingly depreciation was held allowable as on plant & machinery in place of lower depreciation applicable to electrical installation. It was submitted by Ld. AR that the same logic should be applied to the present case. 3.2 Ld. AR further placed reliance on the decision of ITAT Mumbai in the case of ACIT vs. JBF Industries Ltd., ITA No.4035/Mum/2006 dated 17/12/2014, copy of this order was also placed on our record and was also given to Ld. DR. In this decision also similar proposition has been laid down. Thus, it was pleaded by Ld. AR that appropriate relief may be granted to the assessee. 4. On the other hand, Ld .....

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..... e legislature has power to restrict the scope of a word. This amendment has been brought into statute by the legislature and in the clarification and in the notes of clauses vide which amendment was brought into the statute by Finance Act 2003, 260 ITR 128 (St.), the relevant portion at page 208, it is explained as under: "Clarificatory amendments regarding definitions of certain terms relevant to income from profits and gains from business or profession The existing provisions contained in clause(3) of section 43 defines the expression "plant" in an inclusive manner and further excludes tea bushes or livestock. The coverage of the term 'plant' has been a subject matter of litigation, particularly on the issue, whether buildings or furniture and fittings constitute 'plant'. 5.1 As it can be seen from the above clarification, the coverage of term "plant" was subject matter of litigation, particularly on the issue whether building or furniture and fittings constitute "plant" and to clarify the intention of the statute such amendment has been brought. Such amendment brought into the statute by the legislature has not been shown to be violative of constitutional provision. There .....

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