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TMI Blog2011 (2) TMI 1457X X X X Extracts X X X X X X X X Extracts X X X X ..... "The revenue has raised the following ground of appeal that the CIT erred in allowing the depreciation of ₹ 9,43,383/- at the rat of 80% instead of 15%." 2. The facts relating to first ground of appeal raised by the are that the assessee has claimed depreciation in respect of expenses pertaining to component and accessories and electrical items of renewable device including transformer, installation of transmission line and labour expenses for installation as well as testing and commissioning, the total expenses incurred by the assessee of ₹ 29,02,726/-. 3. The Assessing Officer in his assessment order has observed that the items of which the depreciation was claimed not integral part of the windmill, as allowed the deprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Finvest & Agro (P) Ltd. Vs ACIT, he was allowed the claim of the assessee and the higher depreciation of the assessee. Nothing was brought to our notice by the ld. D.R. that whether the decisions relied by the Ld. CIT (A) reversed or modified by the Hon'ble jurisdictional High Court and no contrary decision was also brought to our notice. We, therefore, find no interference is required from the order passed by the Ld. CIT (A) and upheld the order of the Ld. CIT (A) and this appeal filed by the revenue is dismissed. The assessee has raised the following grounds in his cross objections. 1. The order passed by the ld. Addl. CIT Range-3, Jodhpur is bad in law and bad on facts and without proper jurisdictions and the order passed may kindl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk including foundation and allied works in respect of Wind Mill project does not farm integral part of the Mill and confirmed the order of the Assessing Officer. 9. On being aggrieved the assessee raised a cross appeal and it was submitted that the Wind Mill is heavy machine and a special design is required and further a separate foundation is required to be made to hold the Wind Mill foundation and Wind Mill both are plant and machinery; whatever the depreciation is available to the Wind Mill it can be available to the foundation also. 10. In so far as other allied works are concerned it was submitted that all other civil works are part and parcel of the Wind Mill, therefore, assessee is eligible for the higher depreciation as claimed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh 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 wind mill is amounting to part and parcel of the wind mill and it is a plant and machinery and accordingly the assessee is eligible for higher rate of depreciation which was claimed. As far as civil work is concerned, we find that it is not an integral part of the Wind Mill and he is not eligible for higher depreciation. 14. In view of the above observations, we set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. CIT (A) has observed that the assessee has not raised this contention before the Assessing Officer, therefore, rejected the alternative contention raised by the assessee. On being aggrieved the assessee carried the matter in appeal before the Tribunal. 16. The learned counsel for the assessee has submitted that the assessee has incurred ₹ 17,95,000/- in relating to bring the Wind Mill in existence, and therefore the expenses either allowable as a capital or revenue expenditure. If it allowed as a capital expenditure depreciation could be allowed. The Assessing Officer could consider the expenses incurred by the assessee either relating to capital or revenue, cannot deny the claim of the assessee. 17. On the other hand the ld. D.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nses of ₹ 2,00,000/- and ₹ 1,00,000/- relating to repairs and maintenance. The Assessing Officer has made a lump sum disallowance for the reason that these expenses were claimed on the basis of a receipt submitted by the driver after return from the journey and there is no support evidence to the claim. The Assessing Officer has disallowed these expenses on the ground that this expenses which are not due to the nature of these expenses. We have heard both the sides peruse the records. 22. The Assessing Officer has disallowed ₹ 2,00,000/- with the regard to way expenses. In our considered opinion the disallowance is restricted to ₹ 1,00,000/- and the assessee will get benefit in this ground remaining ₹ 1,00,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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