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TMI Blog2017 (3) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... ADVOCATE FOR THE OPPONENT : MR MANISH J SHAH, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Income Tax Appellate Tribunal, Ahmedabad "A" Bench (hereinafter referred to as "the tribunal") dated 31/03/2016 in ITA No.1402/AHD/2014 for the Assessment Year 2009-10 by which the learned tribunal has allowed the said Appeal preferred by the assessee and has quashed and set aside the order passed by the learned Commissioner in exercise of powers under Section 263 of the Income Tax Act (hereinafter referred to as "the Act"), the revenue has preferred the present Appeal with the following proposed question of law; "Whether on the facts and in the circumstances of the case, the ITAT was right in law in setting aside the order of the CIT and restore that of the AO, disregarding the applicability of the provisions of Section 263 of the IT Act to the fact of the case?" [2.0] The assessee filed the return of income for the Assessment Year 2009-10 declaring the total income of ₹ 889,61,66,980/-. The assessee claimed the depreciation of ₹ 57,31,18,034/- for windm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and served upon the assessee. The assessee filed the written submissions. It was the specific case on behalf of the assessee that at the time of the scrutiny assessment, after examining the case the Assessing Officer granted additional depreciation on windmill, and therefore, it was submitted that no error has been committed by the Assessing Officer in granting the additional depreciation of ₹ 7,22,82,760/- as per provisions of Section 32(1)(iia) read with Section 32(1)(iia) of the Act. It was submitted that as such the issue with respect to the additional depreciation of windmill has been concluded by the decision of the Madras High Court in the case of Commissioner of Income Tax Vs. VTM Limited reported in (2009) 319 ITR 336 (Mad). It was also pointed out that the decision of the Madras High Court in the case of VTM Limited(Supra) has been confirmed by the Hon'ble Supreme Court. [2.2] It was also submitted on behalf of the assessee that even with respect obsolete spares and other items written off is concerned, the same was allowed by the Assessing Officer after applying his mind to the facts of the case and after considering the details submitted by the assessee and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Commissioner found that certain inquiry was not held /conducted by the Assessing Officer while accepting the assessee's claim of written off on obsolete spares and stores worked out at Rs..92,66,211/-, and therefore, the assessment order was found to be erroneous and prejudicial to the interest of the revenue and consequently when the learned Commissioner set aside the order of the Assessing Officer and remitted the matter to the Assessing Officer to re-frame the assessment, the same was not required to be interfered with by the learned tribunal. Making the above submissions, it is requested to admit /allow the present Appeal. [4.0] The present Appeal is vehemently opposed by Shri Manish J. Shah, learned advocate appearing on behalf of the assessee. It is submitted that so far as ground no.1 on which the Commissioner took the assessment under suo motu revision, that is with respect to depreciation claimed on windmill is concerned, as such, the issue is concluded on merits in favour of the assessee in view of the decision of the Division Bench of this Court in the case of Diamines & Chemicals Ltd.(Supra). It is submitted that as such while passing the impugned judgment and order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act on windmill, which was allowed by the Assessing Officer is concerned, at the outset it is required to be noted that the aforesaid issue is now not res integra and the same is concluded by the Division Bench of this Court against the revenue in view of the decision of the Division Bench of this Court in the case of Diamines & Chemicals Ltd.(Supra). The aforesaid is not disputed by Shri K.M. Parikh, learned advocate appearing on behalf of the revenue that while passing the impugned judgment and order the learned tribunal has relied upon the binding decision of the Division Bench of this Court in the case of Diamines & Chemicals Ltd.(Supra). Under the circumstances, the learned tribunal has rightly quashed and set aside the order passed by the learned Commissioner with respect to additional depreciation of ₹ 7,22,82,760/- claimed by the assessee under Section 32(1)(iia) of the Act on windmill. Under the circumstances, the learned tribunal has rightly quashed and set aside the order passed by the learned Commissioner so far as the additional depreciation claimed by the assessee under Section 32(1)(iia) read with Section 32(1)(iia) of the Act. [5.2] Now so far as the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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