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TMI Blog2010 (3) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... isallowance of amount of ₹ 1,43,15,579/- being depreciation on the plant and machinery by treating grant as deductible from the cost. The depreciation be allowed on the gross value as claimed. 4. The Ld. CIT(A) erred both in law and on facts in dismissing the ground for claim of depreciation at 100% on the temporary structures of Amul Parlour and thereby reducing the depreciation claim by ₹ 10,62,107/-. The Ld. CIT(A) ought to have allowed the depreciation at 100% as claimed. 5. The Ld. CIT(A) has grossly erred in mentioning that the ground with regard to assessee s contention that depreciation on Amul Parlours being in the nature of temporary construction be allowed at 100% was not pressed for the reason that the A.O. has rectified the same. It is submitted that no such rectification order has been passed by the A.O. granting depreciation at 100% on such temporary structures, and that observation and decision of Ld. CIT(A) that this ground was not pressed is not correct. It is submitted that the Ld. CIT(A) be directed to decide this issue on merits again after considering facts and circumstances of the case. 6. The Ld. CIT(A) patently erre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in assessee s own case for A.Y. 1993-94 (supra). The Tribunal in para 2.1 of their order have given the following findings : 2.1 It is common contention that issue involved in this ground of appeal is covered against the assessee by order of the Tribunal dt.19.12.2002 in assessee s own case for the A.Ys. 1984-85, 1987-88 1988-89 in appeal Nos.1252 to 1253/Ahd/95. In the said order this Tribunal, following the decision of ITAT Ahmedabad Bench in the case of Mehsana Dist. Co-op. Milk Producers Union Ltd., in ITA No.2091/Ahd/90 and others dated 31.8.95 held that the AO had rightly denied deduction in respect of amount transferred to Reserve Fund account as required u/s. 67 of the Gujarat Cooperative Societies Act. We, therefore, respectfully following the same, reverse the order of Ld. CIT(A) and restore the addition of ₹ 76,19,692/-. 8.2. We therefore, respectfully following the aforesaid order of the Tribunal, hold that the CIT(A) has erred in directing the A.O. to allow deduction for the sum of ₹ 19,71,528/- transferred to Reserve Fund Account. The order passed by the CIT(A) is set aside and that of the A.O. is restored in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 which read as under:- 16. We have heard the parties and considered the rival submissions. In our opinion, the CIT(A) is right in holding that the case of the assessee is squarely covered by the decision of the Supreme Court in the case of P.J. Chemicals Works Ltd. (supra). The assessee has set up a milk processing plant called Mother Dairy Plant at Gandhinagar having milk processing capacity of 4 lac litres per day. The said project initially estimated at a cost of ₹ 16.04 crores was financed under the National Dairy Project-II/Operation Flood-III by the National Dairy Development Board. The financing by the NDDB is undertaken by 70% loan and 30% grant basis. As per the agreement dt.30th October,1991 signed between the assessee and NDDB what comes out is that by clause (1) of the agreement NDDB has given disbursement to borrowers a sum of ₹ 13058.98 lacs as grants towards part-finance for the project as per the terms and conditions. Subject to paragraph 4 of the agreement, the estimated cost for disbursement is stated as under:- Item. Estimated total Cost Amount of grant of (30% of cost) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of the assessee, in this year as well. 12. The learned A.R. submitted that explanation 10 to section 43(1) introduced w.e.f. 1-4-1999 should have been considered in as much as if any subsidy/grant has been given for purchasing any asset after 1-4-1999 then it should be reduced from the cost and depreciation should be allowed only on the balance. 13. This issue had also arisen before the Tribunal in A.Y. 2000-01 wherein paragraph 10, the Tribunal had considered the same and after following the decision of Hon ble S.C. in the case of P.J.Chemicals Works Ltd., (1994) 210 ITR 830 (SC) held that subsidy is given for the project as a whole and not in respect of an individual asset. Therefore, it will not affect the actual cost of any specific Plant and Machinery and accordingly will not be reduced for calculating the depreciation. Since the issue is covered it does not require to take a different view than what has been taken by the Tribunal in earlier years. As a result, following the decision of the Tribunal in A. Y. 2000-01 we allow the claim of the assessee. This ground is accordingly allowed. 14. Ground No.4 relates to confirming the disallo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee since the entire amount was committed for charitable work including providing relief to earthquake victims then it can be treated as application of the fund and accordingly 100% deduction should be allowed to the assessee on whole of the amount. But according to the learned A.O. conditions laid down under section 80G(5C) were not fulfilled therefore assessee, was not entitled to 100% deduction u/s. 80G(2)(d). 17. The Ld. C.I.T.(A) analyzed the provisions of section 80G(5C) and inferred that if application of donation is not done in accordance with section 80G(2)(d) read with sec.80G(5C) then whole object of implementation of relief work would be defeated. These 2 provisions were specifically incorporated to provide relief to the victims of Gujarat Earthquake and if the conditions laid down in these provisions are not complied with then 100% deduction should not be allowed. He finally held as under :- As per the provisions of section 80G(5C) sub clause (iv), the unutilized portion of the donation had to be transferred to the P.M. National Relief Fund by 31.3.2004 but the appellant by its own admission has stated that a sum of ₹ 1 crore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iiia) or in sub-clause (iiiaa) or in sub-clause (iiiab) or in sub-clause (iiie) or in sub-clause (iiif) or in sub-clause (iiig) 5or in sub-clause (iiiga) or sub-clause (iiih) or sub-clause (iiiha) or sub-clause (iiihb) or sub-clause (iiihc) or sub-clause (iiihd) or sub-clause (iiihe) or sub-clause (iiihf) or sub-clause (iiihg) or sub-clause (iiihh) or sub-clause (iiihi) or in sub-clause (vii) of clause (a) 4or in cluse (c) 5or in clause (d) thereof, an amount equal to the whole of the sum or, as the case may be, sums of such nature plus fifty per cent. of the balance of such aggregate; and (ii) xxxxxxxxxxxxxxxxxxxxx (2) The sums referred to in sub-section (1) shall be the following, namely:-- xxxxxxxxxxxx xxxxxxxxxx 5(d) any sums paid by the assessee, during the period beginning on the 26th day of January, 2001, and ending on the 30th day of September, 2001, to any trust, institution or fund to which this section applies for providing relief to the victims of earthquake in Gujarat. Xxxxxxxxx Xxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 5(5C) This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re required to be satisfied cumulatively and simultaneously by the trust institution or fund to which donation is given. Even though the donor may not have any control over the donee trust as to how and when it is spending the money but as the law stands other conditions mentioned in section 80G(5C) are to be treated as essential as condition No.1 in section 80G(5C). If condition No.1 is not fulfilled and all other conditions are fulfilled still then assessee will not get deduction as per section 80G (1). Similarly, if other conditions are not satisfied and only condition (i) at 80G (5C) is fulfilled then same inference is to be drawn. Conclusion in such a situation cannot be different. It is undisputed fact that funds were not utilized by the donee trust and the other conditions namely conditions at clause 2, 3 and 4 were also not fulfilled. Then as per initial words used in 80G(5C), deduction u/s. 80G would not be available to the donee trust. No contrary authority is cited before us by the Ld. A.R. We accordingly uphold the order of the Ld. CIT(A). This ground of the assessee is accordingly rejected. 22. Ground No.6 of the assessee relates to the confirmation of action ..... X X X X Extracts X X X X X X X X Extracts X X X X
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