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TMI Blog2012 (12) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of the case, the ld. CIT(A) has erred in : 1. deleting the disallowance of excess depreciation of ₹ 13,66,440/- claimed on wind-mill 2. deleting the disallowance of depreciation claimed @ 80% on evacuation charges of ₹ 20,20,000/-." 3. Facts of the case, in brief, are that the assesseecompany is engaged in the manufacturing of Glaze Frit mainly used for ceramic tile manufacturing units. It is also engaged in generation of wind-power-energy. The assessee-company filed its return of income for Assessment year 2008-09 on 29.9.2008, disclosing total income of ₹ 1,31,999,340/-. Subsequently, the assessee revised its return on 16.3.2010 in which income was disclosed at ₹ 2,18,04,980/-. In the revised return, the assessee itself withdrew the claim of deduction made u/s 80IA of the Income-tax Act, 1961 [hereinafter referred to as 'the Act', for short]. The assessee had got installed a windmi ll through Suzlon Infrastructure Limited on which depreciation @ 80% has been claimed. The value of assets and rate of depreciation applied by the assessee to claim depreciation is as under : Item Cost Rate of depreciation Civil Work including foundation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Foundation work and transformer 26,61,554/- 10% 1,33,077/- 9,31,544 Cost of wind-mill, tower and installation charges 2,73,20,696 + 11,88,769 80% 1,14,30,752 - Transformer and electrical components 17,51,904 80% 7,00,761 - Electrical items and installation 13,38,141 15% 1,00,360 4,34,896 13,66,440 So, the A.O. has disallowed total excess claim of depreciation of ₹ 13,66,440/- [Rs. 9,31,544/- on foundation work and transformer plinth, and ₹ 4,34,896/- on electrical items and installation]. This amount has been deleted by the ld. CIT(A) ad is the subject-matter of Ground No. 1 of Revenue's appeal. Deletion of addition of ₹ 20,20,000/- relates to disallowance of excess claim of depreciation on evacuation charges. This issue is the subject matter of Ground No. 2. 5. We will discuss al the issues head-wise. Expenditure on foundation and electrical Regarding installation of wind-mill The wind turbine generation machine of 600 kw alongwith rotor blades are installed at 50 feet above the ground level and its very weight runs into tones. Without specific and specialized installation and foundation, wind-mill cannot be put to use and as such, the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generated by windmill to state electricity grid without which it is impossible to sell the power generated by the wind-mill. This system is developed by authorized agencies by the State Government. For augmentation of transmission/ distribution system to evacuate the power from receiving station, discom develop/augments the necessary transmission/distribution network and for that, the assessee pays its one-time charges, which are nonrefundable. Thus, evacuation charges paid are an integral part of the cost of acquiring the wind-mill. Similar view has been taken by the Jodhpur Bench in the case of K.K. Enterprises [supra]. Therefore, by respectfully following the Tribunal order, we cannot allow the grounds raised by the Revenue and confirm the finding of the ld. CIT(A). Accordingly, both the grounds raised in this appeal stand dismissed. 8. In the result, the appeal of the Revenue stands dismissed. ITA No. 290/JU/2012 [Assessment year 2005-06] 9. This is an appeal of the Revenue filed against the common order dated 7.5.2012 of the ld. CIT(A), Udaipur. 10. The Revenue has raised the following grounds: "On the facts and in the circumstances of the case, the ld. CIT(A) has erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erification was passed for payment on 1.3.2005 and TDS was made on 1.3.2005, which was deposited on 7.4.2005, and the same is within the prescribed limit. The ld. CIT(A) has relied on the decision of the Hon'ble Calcutta High Court in the case of CIT Vs. Virgin Creations order dated 20.11.2011, holding that the Finance Act, 2010 has amended the provisions of section 40(a)(ia) which are applicable w.e.f. 1.4.2005 and as per this amended provision, the expenditure is allowable if the tax has been deducted at source before the end of the previous year and paid before the due date of filing of the return of income. In this case, admittedly and undeniably the return of income was filed before the due date. Therefore, we are also in agreement with the above finding of the ld. CIT(A) which could not be successfully controverted by the department. Furthermore, we have noticed that the assessee company paid quarterly commission to M/s Cera Ceramics and the required TDS for each quarter was duly deducted and deposited as per law. The bill of 3rd quarter was received by the assesseecompany and after necessary verification, bill was passed for payment on 1.3.1985 and TDS was made on 1.3.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the authorities. 16. After co-agitating rival stands in the light of available evidence on record, agree with the finding of ld. CIT(A), in this regard. It is noticed from records that the assessee has made payment of ₹ 42,70,753/- to Indus Intermodel Carriers [Bombay] Pvt. Ltd. for payment of duties, freight and other part expenses. The payee company has issued detailed bill supported by proof of expenses incurred on assessee's behalf. The company has separately charged for this work. It was found as a fact that the likes of payee company [agency] are authorized or l icensed to work at parts and assessee has to carry its work through one of them, without there being any written agreement, etc. The work of mediator-agency like payment to shipping line for freight, freight charges, administrative and other charges payable to respective authorities by the assessee, are done through them. For this work, the company [payee] charges, separately apart from the actual payments made on behalf of the assessee. The entire process is handled by the clearing agent. Finally, they raise bill showing complete details of charges paid on assessee's behalf and their agency charges, separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hands of payee. Similar view has been expressed by the Hon'ble Delhi High Court in the case of Grandprix Fab Ltd. 34 DTR 248. Therefore, we are of the view ld. CIT(A) was justified in holding that on account reimbursement of expenses, no liability was there u/s 194C." 18. Regarding remaining payment of ₹ 3,79,150/- i.e. payment made to CFA, the agent of non-resident shipping carriers in pursuance of Sec. 175 do not attract application of Sec. 194C, which is applicable to only residents. In this regard, the decision of Jodhpur Bench rendered in the case of Amarjyothi Granites [India] Pvt. Ltd Vs. ACIT in ITA No. 201/JU/2010 and that of Minpro Industries reported in 143 TTJ 331, are relevant. 19. Hence we do not find any fallacy in the finding given b the ld. CIT(A). He has come to his conclusion by relying on the decision of jurisdictional Jodhpur Bench of ITAT and the S.B. of the ITAT, inter alia. By respectfully following the Hon'ble Jurisdictional Bench's decision we are bound to uphold the decision of the ld. CIT(A), when, there are no contrary decisions in favour of the Revenue. Ground No. 2 of the Revenue's appeal stands dismissed. 20. The facts apropos G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturing is such that it cannot afford to break at any moment otherwise whole batch of the product is liable to be waste. Further, furnace comprises of too many items and gas based generator is also one of them. Further, assessee company has capitalized on the basis of complete technical reports. The A.O. has not understood complete technicalities and only by common words he made his opinion and arbitrarily disallowed depreciation on part of plant. Therefore, considering above depreciation is allowable on complete furnace including the gas based generator and allied attached to that. The appellant has further stated that in the process of manufacturing of frit, the required raw material is mixed in certain proportions and is being melted product is then quenched into water to cool down and then dried upto form crystals, finished product. Alongwith this, the appellant has given copy of ledger account for the installation of said furnace in support of his contentions and depreciation was allowed @ 80% on amount debited to plant and machinery on completion of klin IV of ₹ 1,34,91,276/-". 22. The ld. CIT(A), after considering the above submissions of the assessee, came to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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