9911796707
TMI Blog2016 (3) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (1), Kolhapur erred in confirming the disallowance of depreciation of Rs. 10,12,043/- on the cost of foundation of a Wind Turbine and on the cost of installation and commissioning of the Wind Turbine without properly appreciating the explanation filed. 2. While confirming the disallowance of depreciation amounting to Rs. 10,12,043/-, the learned CIT(A) conveniently ignored the copies of the appellate order passed by the CIT (A) in similar type of case and also ignored the decisions of the ITAT and of the Bombay High Court when copies of those decisions were filed before him on 19th of March, 2013 and when the said decisions were directly on the issue involved. 3. The learned CIT(A) further erred in confirming the disallowance of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80% applicable to windmills whereas depreciation of 10% is allowable in respect of civil work and depreciation @ 15% was allowable on the cost of installation and commissioning. The assessee has objected to this observation and claimed higher rate of 80% available on the entire plant relying on the decision in the case of Poonawala Finvest and Agro Pvt. Ltd. vs. ACIT, 12 DTR 211 by ITAT, Pune. The assessee also relied on decision of the Hon'ble Supreme Court in the case of CIT vs. Karnataka Power Corporation, 247 ITR 268 (SC). The CIT(A) held that contention raised by the assessee is not acceptable for the simple reason that the earth work and foundation is nothing but civil work and normal depreciation is allowable @ 10%. Similarly, erecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for adjudication before us is allowability of similar depreciation rate as applicable to windmills, also to the 'foundation & civil work' and 'erection & commissioning work' executed for these windmills. It is the case of the assessee before the Assessing Officer as well as before the CIT(A) that entire expenditure together with cost of windmill is entitled to same rate of depreciation at 80% as the other expenditure incurred towards 'foundation & civil work' and 'erection & commissioning work', etc. are integral part of windmills and are directly attributable to installation and operational functioning of wind turbine. Since the civil work and erection & commissioning expenses incurred are in relation to installation of windmill, deprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of the assessee the depreciation as claimed by the assessee deserves to be allowed. In the result, Ground Nos.1 & 2 are allowed. 10. Ground No.3 of the appeal of assessee relates to disallowance of Rs. 1,03,815/- on account of element of personal user towards vehicle repairs and maintenance, telephone expenses and travelling expenses, etc. on estimated basis. 11. It is the case of the assessee that in the case of a company element of personal user out of expenses cannot be inferred. We find merit in the plea of the assessee. The company being juristic person, it is difficult to accept the basis for disallowance of the Revenue. A company is incapable of having any personal user of the facilities. The directors are separate from the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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