PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL) vs. M/S KATARIA INDUSTRIES PVT. LTD.

1 Income Tax Appeal No.96/2016 (Principal Commissioner of Income Tax (Central), Aaykar Bhawan, Bhopal Versus M/s. Kataria Industries Private Limited, Mumbai) Indore, Dated 09.01.2018 Ms. Veena Mandlik, learned counsel for the appellant / revenue. Shri Sumit Nema, learned Senior Counsel along with Shri Piyush Parashar, learned counsel for the respondent. Heard on the question of admission. O R D E R It is not in dispute that the Wind Mill is owned by the present respondent. 2. The issue involved in this appeal is squarely covered by a Division Bench decision dated 24.10.2017 of this Court in the case of Principal Commissioner of Income Tax (Central), Aaykar Bhawan, Bhopal v. M/s. Ratlam Wires Private Limited, Ratlam, Income Tax Appeal No.78/2016, by passing following order: - "Regard being had to the similitude in the controversy involved in the present cases, the appeals were analogously heard and by a common order, they are being disposed of by this Court. Facts of I.T.A. No.78/2016 are narrated hereunder. The present appeal has been filed by the Income Tax Department being aggrieved by order dated passed by the Income Tax Appellate Tribunal, Bench Indore in I.T.A. No.23 (Revenue/ Ind / 2015) for the assessment year 2006 – 2007. Facts of the case reveal that during search and seizure operation u/S. 132 of the Income Tax Act, 1961 the business as well as residential premises of Kataria Group, Ratlam was subjected to search and seizure on 7/9/2011. During the course of the assessment proceedings it was revealed that the assessee has claimed depreciation on Wind Mills for the assessment year 2006 – 2007, 2008 – 2009 and 2009 – 2010 for 2 a sum of Rs.13,28,400/-; Rs.3,20,53,136/- and Rs.64,10,627/-, respectively. The Assessing Officer has held that the Wind Mill was not owned by the Assessee and the real owner and user of the turbine was M/s. Enercon India Ltd., It was held by the Assessing Officer that the necessary condition for claiming depreciation u/S. 32 the Income Tax Act, 1961 was not fulfilled as the assessee was not the owner of the asset. Being aggrieved the order passed by the Assessing Officer, an appeal was preferred before the Commissioner, Income Tax Appeal and the appeal was decided in favour of the assessee, against which the Income Tax Department has preferred an appeal before the Income Tax Appellate Tribunal and the appeal of the Department was dismissed, meaning thereby, an addition made by the Assessing Officer of Rs.13,28,400/-; Rs.3,20,53,136/- and Rs.64,10,627/- on account of the depreciation claimed on Wind Mill for the assessment year 2006 – 2007, 2008 – 2009 and 2009 – 2010 was deleted. Against the passed by the Income Tax Appellate Tribunal, the present appeal has been filed before this Court raising the following substantial questions of law: (1) Whether on the facts and in the circumstances of the case, the I.T.A.T., was legally correct in allowing the depreciation on the assets which is not actually in the possession of the assessee? (2) Whether the order of the Tribunal ignores and does not deal with the factual findings recorded by the assessing officer and is, therefore, perverse? This Court has carefully gone through the order passed by the Assessing Officer, the order passed by the Commissioner, Income Tax appeal and the order passed by the Income Tax Appellate Tribunal. Both the question Nos.1 and 2 are purely the question of facts which been decided by the Tribunal as a last authority on facts by analyzing the relevant documents and facts and the first appellate authority has also decided the issue in favour of the assessee. Thus, there are concurrent findings of fact by both the appellate authorities. In the light of the aforesaid, this Court is of the considered opinion that both the question Nos.1 and 2 raised in this appeal are thus not question of law, but they are purely questions of facts which have been decided by the Tribunal as the last authority on facts by analyzing the relevant documents and facts and the 3 first appellate authority has also decided the issue in favour of the assessee. Thus, there are concurrent findings of fact by both the appellate authorities. Keeping in view the aforesaid, this Court is of the considered opinion that the present appeal and the connected appeals deserve to be dismissed and are accordingly hereby dismissed." 3. On due consideration of the aforesaid, so also order passed by the learned Income Tax Appellate Tribunal, no substantial question of law is arising in this appeal, and therefore, order dated 24.10.2017 passed by this Court in Income Tax Appeal No.78/2016 (Principal Commissioner of Income Tax (Central), Aaykar Bhawan, Bhopal v. M/s. Ratlam Wires Private Limited, Ratlam) shall apply mutatis-mutandis in the present case also. 4. Accordingly, Income Tax Appeal No.96/2016 stands disposed of in terms of order dated 24.10.2017 passed in Income Tax Appeal No.78/2016 (Principal Commissioner of Income Tax (Central), Aaykar Bhawan, Bhopal v. M/s. Ratlam Wires Private Limited, Ratlam). (P.K. Jaiswal) (Virender Singh) Judge Judge Pithawe RC Ramesh Chandra Pithwe Digitally signed by Ramesh Chandra Pithwe DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=5657c7dcce52095b400cf9f273e8b1c d636bdbf86f330909bb87923adec1e27a, cn=Ramesh Chandra Pithwe Date: 2018.01.11 15:49:04 +05'30'