2011 (11) TMI 725

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..... or, 800 KW, type E-48 including approach and internal roads, 11/22/33KV internal / external lines including DP structures poles at windfarm site are not covered by item no. III (8) (xiii) (1) of Appendix I under Rule 5 of Income Tax Rules, 1962 being ''Wind Mills and any specially designed devices which run on wind mills'' and restricting the depreciation to 10% of WDV by treating the same as building particularly when such expenditure are incurred specifically to enable the windmill to perform its basic function which is generation of power and the capital expenditure so incurred is eligible for depreciation @ 80%. (2) That on the facts and in the circumstances of the case, the ld.CIT(A) grossly erred in confirming the disallowance of de .....

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..... iation at the same rate as applicable to that plant and machinery. In the case of ACIT vs Madras Cements Ltd. , 110 it 281 (Mad.), has held that the foundation work done for fixing machinery is to be treated as part of the plant and machinery. In the case of CIT vs R.G. Ispat Ltd. 123 CTR (Raj.) where the Jurisdctional High Court categorically held that the massive reinforced concrete structure, especially designed to take up loads, constituted 'plant' within the meaning of Section 43(3) of the Income Tax Act, 1961 13. We therefore, taking into consideration the facts and circumstances of the case and also following the above case laws, we came to conclusion that the foundation of the windmill is amounting to part and parcel of the wind m .....

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..... ng the cost of the construction of the room from the said wind mill. The said construction of the room , as argued has been specially designed for the purpose of the wind mill and therefore, the ld. CIT(A) is directed to allow the depreciation as per the rules applicable on the wind mills. Thus Ground No. 6 of the assessee is allowed.'' 2.4 We therefore, hold that the depreciation will be allowed on the foundation of windmill as well as for the construction of the room. In respect of other civil work, ITAT Jodhpur bench vide order dated 11-02-2011 (ITA No.195/JU/2010) has restored the issue in the case of Delhi Rajasthan Transport Co. Ltd. 3.1 The third ground of appeal of the assessee is that the ld.CIT(A) has erred confirming the levy o .....

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