M/S ECO RRB INFRA PVT. LTD.,,NEW DELHI vs. DCIT, NEW DELHI

3.0 At the outset, the Ld. Authorized Representative submitted that all the grounds raised in the appeal were covered by earlier orders of the Tribunal in assessee’s own case. Copies of the orders of the ITAT for Assessment Years 2006-07, 2012-13, 2013- 14, 2014-15 and 2015-16 were placed on record. The Ld. AR submitted that all the issues raised in this appeal have been decided either in favour of the assessee or against the assessee and therefore, were accordingly covered.

4.0 Per contra, the Ld. SR. DR fairly conceded that all these issues are covered by the order of the Tribunal for earlier years.

5.0 We have gone through the records and also perused the orders of the Tribunal in asessee’s own case. It is seen that in and ITA No.6149/Del/2012 for Assessment Years 2006-07 and 2007-08, the Co-ordinate Bench of this Tribunal vide order dated 27.09.2013 has observed that an identical question had M/s ECO RRB Infra Pvt. Ltd. Vs. DCIT arisen in the case of RRB Consultancy reported in [2007] 112 TTJ 794 (Del) wherein it was observed that “where the assessee’s main activity was consultancy in the field of wind mill energy and wind mills were also used for generation of electricity, expenditure incurred by the assessee on repair and maintenance of wind mill energy generation and insurance expenses was allowable and was not to be deducted from the income from generation while allowing deduction u/s 80IA” .

5.1 In Assessment Year 2008-09, vide order dated 11.05.2012 in in appeal preferred by the Revenue, the Co-ordinate Bench of this Tribunal considered the orders for earlier years, namely Assessment Years 2000-01 and 2002-03 and reached a conclusion that deduction u/s 80IA of the Act is to be computed after setting off of depreciation relatable to wind mills against the income earned from electricity generators which qualified for deduction u/s 80IA of the Act. In the assessee’s appeal for the same year, the Tribunal recorded that the appeals against the order of the Tribunal were pending before the Hon’ble Delhi High Court and, therefore, remanded the matter to the file of the Assessing Officer to M/s ECO RRB Infra Pvt. Ltd. Vs. DCIT take a view after the Hon’ble High Court adjudicates the issue so as to avoid multiplicity of proceedings.

5.2 For Assessment Year 2008-09, in vide order dated 16.10.2014 and for Assessment Year 2009-10 in ITA No.701/Del/2013 vide order dated 16.10.2014, the Tribunal followed the view taken by the Tribunal in assessee’s appeals for Assessment Years 2006-07 & 2007-08 and remanded the matter to the file of the Assessing Officer to adjudicate the issue afresh in light of the judgment of the Hon’ble Delhi High Court.

5.3 Similarly, remand was done by the Tribunal in Assessment Year 2012-13 in wherein vide order dated 06.01.2020 the issues were restored to the file of the Assessing Officer.

5.4 Therefore, in view of the factual matrix of the case, we are of the considered opinion that it would be just and proper to remand this appeal also to the file of the Assessing Officer to adjudicate the issues in hand afresh in tune with the directions in 6149/Del/2012, 700/Del/2013, 701/Del/2013.

Thus, grounds Nos. 1 & 2 are allowed for statistical purposes.

M/s ECO RRB Infra Pvt. Ltd. Vs. DCIT 5.5 Coming to ground No.3 challenging the denial of depreciation on lands, it is seen that this issue is no longer res integra and it is settled law that depreciation on land cannot be allowed. Even the ITAT in assessee’s own case for Assessment Years 2006-07 and 2007-08 in and 6149/Del/2012 vide order dated 27.09.2013 has held that depreciation on land is not allowable. Accordingly, the finding of the Ld. CIT (A) in disallowaning depreciation on land is upheld and ground No.3 of the appeal is dismissed.

6.0 In the final result, the appeal of assessee is partly allowed.

Order pronounced in the Open Court on 22/06/2020.