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TMI Blog2017 (5) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... m not available to the assessee in respect of COGEN Unit I and and COGEN Unit II as both had generated power for captive use only - Held that:- Respectfully following the Hon’ble Gujarat High Court in the case of Alembic Ltd. [2016 (7) TMI 1239 - GUJARAT HIGH COURT] wherein allowed the claim of the assessee even in respect of electricity generation plant established by the assessee and the income derived from such enterprise of the assessee, it would have to be held that the assessee fully complied with the requirements prescribed under section 80-IA in order to avail the benefits provided therein. Therefore, the contention based on the interpretation of the expression `derived from’ could have no application to the case where the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitiating penalty proceeding u/s. 271(1)(c). 3. In this case return of income declaring income of ₹ 23927420/was filed on 30/09/2008. Subsequently, the case was selected under scrutiny by the issuing of notice under section 143(2) of the act on 24/09/2009. The brief facts of the case are discussed in the respective grounds of appeal as under:- Ground No. 1 (Software expenses as capital expenses) 4. During the course of assessment proceedings the assessing officer noticed that assessee has debited ₹ 128 20709/ under the head repairs to machinery. The assessing officer observed that these expenditures were incurred for enhancing the efficiency of the machinery and was the nature of enduring benefit to the machinery.The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that expenditure on software for billet heater programming was of capital nature since it resulted into an enduring benefit to the assessee. The Ld. CIT(A) has further reported that life of this kind of software was not less than 2 years and stated that depreciation on the same to be allowed as applicable. We find that assessee failed to disprove the facts as elaborated in the findings of the Ld.CIT(A),therefore we do not find any reason to interfere in the findings of the Ld CIT(A). Ground No. 2 (Disallowance of deduction u/s. 80IA 6. During the course of assessment proceedings the assessing officer held that deduction under section 80 IA of the act was not available to the assessee in respect of COGEN Unit I and and COGEN Unit II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 471 and 473, the common question of law referred to by the Revenue is as under:- Whether the Appellate Tribunal was right in law and on facts in not appreciating that deduction u/s 80IA(4) is not allowable to the assessee for generating power for captive consumption? 17.2 The ITAT allowed the assessee s claim u/s 80IA(4) at the rate of selling price charged by Gujarat State Electricity Board and other distributing companies from its captive power plant. Against the order of the Tribunal, the Revenue preferred the appeal before the Hon ble Gujarat High Court and the above question of law was framed. The Hon ble Gujarat High Court while holding in favour of assessee, relied on a host of judgments including ACIT, Bharuch Circl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , relied upon the order of the authorities below. 18. We have heard the rival contentions, perused the material available on record and gone through the orders of the authorities below. In view of the Hon ble Gujarat High Court judgment on the same issue in assessee s own case, the issue in question that the assessee is eligible for computation of deduction u/s 80IA(4) on the rates charged by it at selling price is no more res integra. Respectfully following the Hon ble Gujarat High Court judgment in assessee s own case (supra), this ground of the assessee is allowed. 7.1 In view of the above stated facts and legal findings, respectfully following the Hon ble Gujarat High Court in the case of Alembic Ltd. as supra we allow this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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