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TMI Blog2016 (8) TMI 1555X X X X Extracts X X X X X X X X Extracts X X X X ..... details of the above said additions along with all documentary evidences to establish your claim." 3. The assessee filed reply dated 08.12.2010 and gave details of additions on fixed assets along with sample copies of invoices which was annexed 2(a) and 2(b) of the reply dated 08.12.2010. The assessee has also given schedule of depreciation in which 100% depreciation was claimed on hoarding structures. The depreciation claimed on hoarding structures at 100% was on a WDV of hoarding structures at Rs. 4,61,52,097/-. Assessment was completed by the AO u/s. 143(3) of the Act in which no adverse inference was drawn with regard to the claim of depreciation on hoardings as made by the assessee and the same was allowed by the AO. There is no discussion on the claim of the assessee for 100% depreciation as above in the order of assessment. 4. The CIT in exercise of his powers u/s. 263 of the Act was of the view that the aforesaid order of the AO was erroneous and prejudicial to the interest of the revenue for the following reasons: " 1. That you claimed depreciation on hoarding structure at the rate of 100% instead of at the rate of 120% and the same was allowed in the assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on@ 100% on the hoarding structure from the beginning i.e. the hoarding structure used in the financial year corresponding to the assessment year 1985-86 has no bearing on the depreciation of subsequent years. The allowable depreciation for the assessment year 2008-09 has to be considered in the light of nature, of structure used for hoarding during the relevant. financial year and not on the percentage of depreciation allowed almost 30 years back in his case. d) With the advancement of technology the more sustainable materials are used for the hoarding structures particularly when those involves huge amount as in the case of the assessee which involves crores of rupees. The assessee failed to establish his claim that the hoarding structure used during the concerned period were purely temporary in nature. e) Accordingly, the claim of the assessee of depreciation on hoarding structure at the rate of 100% ought to be disallowed and the AO should look into this issue afresh and pass necessary order as per law. 7. Aggrieved by the order of CIT the assessee has preferred the present appeal before the Tribunal. 8. We have heard the submissions of the ld. Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation because cylinders were used for less than 180 days. The learned Departmental Representative is a representative of the Assessing Officer. He cannot dispute a fact, which is accepted by the Assessing Officer himself. therefore, when the Assessing Officer himself has accepted the user of the cylinders, the learned DR cannot dispute it. IN view of the legal position and the facts as discussed above, we hold that the assessee is entitled to 100 per cent depreciation on gas cylinders purchased and used during the year under consideration amounting to Rs. 15,32,092. Ground Nos. 1, 2 &3 of the assessee's appeal are allowed." The CIT(A) granted relief by allowing 100% depreciation not as treating the expenditure as revenue in nature as claimed by the revenue in its appeal ground. The ratio decided by Hon'ble ITAT, Jabalpur Bench appears to be applicable in the assessee's case. 15.1. Respectfully following the decision of the Hon'ble ITAT Jabalpur Bench we uphold the order of the ld. CIT(A) on this issue and dismiss the revenue's ground of appeal on this issue." 9. The revenue filed the appeal against the aforesaid order dated 30.06.2009 before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by ITAT, Mumbai Bench was as to whether hoardings were buildings entitled to 10% depreciation or plant entitled to depreciation at 15%. The Tribunal in para 43 of its order held that advertising hoarding structures which are permanent structures embedded in the building having foundation being erected and constructed by the assessee and was building and the assessee was entitled to claim depreciation at 10%. It was submitted by him that the CIT in the impugned order has referred to the advancement of technology and sustainable materials being used in the hoarding structures and the light of the aforesaid development has only remanded the issue to the AO for fresh consideration and therefore order of the CIT should be upheld. 11. We have given a very careful consideration to the rival submissions. As we have already seen above that the facts of the case go to show that the AO made enquiries on this issue and after being satisfied with the claim of the assessee allowed the cal of depreciation on hoardings at 100%. Order of the AO was in tune with the order of the tribunal in the past which has been accepted by the revenue. In fact even for the subsequent A.Y. 2009-10 the issue was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) is a case where the question was whether hoardings constitute building or plant. In our view this cannot be said to be a precedent in so far as the issue involved in the present case is concerned. We are also of the view that the CIT in exercise of his powers u/s. 263 of the Act has to come to a definite conclusion as to how the order of the AO was erroneous. He cannot set aside the order of AO and direct an enquiry on the question whether hoarding structure would be in the nature of purely temporary erection. In other words the CIT could invoke the jurisdiction u/s. 263 of the Act only on a finding that hoardings were not purely temporary erection and such finding has to be sustainable in law. It is only then the CIT can make out a case that order of AO was erroneous. In the present case the CIT has not given such a finding. Even on this basis, we are of the view that order u/s. 263 of the Act cannot be sustained. 13. For the reasons given above we hold that the order of AO which was sought to be revised in the impugned order of CIT was not erroneous. Therefore order u/s. 263 of the Act cannot be sustained. The same is hereby quashed and the appeal of the assessee is allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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