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Income Tax Appellate Tribunal, “A” BENCH, AHMEDABAD
Before: SHRI SIDDHARTHA NAUTIYAL & SHRI NARENDRA PRASAD SINHA
&1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 2– O R D E R PER BENCH: These are appeals have been filed by the Department against the order passed by the Ld. Commissioner of Income Tax (Appeals), (in short “Ld. CIT(A)”), National Faceless Appeal Centre, (in short “NFAC”), Delhi vide orders dated 03.07.2024 & 13.08.2024 passed for A.Ys. 2016-17, 2017-18 & 2018-19. Since common facts and issues for consideration are involved for all the years under consideration all the appeals are being taken up together.
At the outset, we observe that the appeals in are time barred by 03 days. The delay of 03 days is condoned on due consideration of facts and owing to smallness of delay causing no perceptible prejudice to other side.
The Department has raised the following grounds of appeal are as under:
“ITA No. 1588/Ahd/2024 (A.Y. 2016-17) 1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the Disallowance of deduction u/s 80P(2)(d) of the Act of Rs. 4,04,46,012/- without taking into consideration facts that the assessee could not establish the direct nexus between the funds used for investments and the co-operative society's own funds? 2. Whether on the facts and In the circumstances of the case and in law, the Ld. CIT(A) was justified in allowing the additional depreciation claimed for addition in new machinery in preceding year of Rs. 8,31,15,592/- without taking into consideration the retrospective applicability of the third proviso to Section 32(1)(ii) with respect to the Assessment Year in question? 3. Whether on the facts and in the circumstances of the case and in law, the Ld CIT(A) was justified in allowing depreciation and additional depreciation claimed on CANs and Equipments amounting to Rs. 1,07,64,866/- when it is clear that Milk Cans and &1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 3–
Equipment do not qualify as 'Plant and Machinery' for the purpose of addition depreciation u/s 32 of the Act? 4. The appellant craves leave to amend or alter any ground or add a new ground, which may be necessary. 5. It is, therefore, prayed that the order of Ld. CIT(A) may be set aside and that of the Assessing Officer be restored?”
(A.Y. 2017-18) “1. Whether on the facts and in the circumstances of the case and in law, the Ld CIT(A) Was justified in deleting the Disallowance of deduction u/s 80P(2)(d) of the Act of Rs. 3,48,88,755/- without taking into consideration facts that the assessee could not establish the direct nexus between the funds used for investments and the co-operative society's own funds? 2. Whether on the facts and in the circumstances of; the case and in law, the Ld CIT(A) was justified in allowing the additional depreciation claimed for addition in new machinery in preceding year of Rs. 46,10,700/-, without taking into consideration the retrospective applicability of the third proviso to Section 32(1)(ii) with respect to the Assessment Year in question.
3. Whether on the facts and in the circumstances of the case and in law, the Ld CIT(A) was justified in allowing depreciation and additional depreciation claimed on CANs and Equipments amounting to Rs. 95,07,372/-, when it is clear that Milk Cans and Equipment do not qualify as 'Plant and Machinery" for the purpose of addition depreciation u/s 32 of the Ac? 4. The appellant craves leave to amend or alter any ground or add a new ground, which may be necessary.
5. It is, therefore, prayed that the order of Ld. CIT(A) may be set aside and that of the Assessing Officer be restored?”
(A.Y. 2018-19) “1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the disallowance of deduction u/s 80P(2)(d) of the Act of Rs. 4,38,09,925/- without taking into consideration facts that the assessee could not establish the direct nexus between the funds used for investment and the co-operative society's own funds? 2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in allowing the additional depreciation claimed for addition in new machinery in preceding year of Rs. 20,09,93,030/- without taking into consideration the retrospective applicability of the third proviso to section 32(1)(ii) with respect «o the assessment year in question? 3. Whether on the facts and in the circumstances of the case and in Jaw, the Ld. &1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 4– CIT(A) was justified in allowing depreciation and additional depreciation claimed on CANs and equipments amounting to Rs. 1,05,56,281/- when it is clear that milk cans and equipment do not qualify as plant and machinery for the purpose of addition depreciation u/s 32 of the Act? 4. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary.
5. It is therefore, prayed that the order of Ld. CIT(A) may be set aside and that the order of the Ld. CIT(A) may be set aside and that of the assessing officer be restored?” We shall first take up the Department’s appeal for A.Y. 2016-17 Ground No. 1: Disallowance of deduction under Section 80P(2)(d) of the Act of Rs. 4,38,09,925/-.
The brief facts of the case are that during the course of assessment, the Assessing Officer observed that the assessee has shown investment in shares and securities of Rs. 19.28 crores. Further, the assessee had borrowed a sum of Rs. 217 crores and claimed total interest expenditure of Rs. 13.21 crores on the same. The assessee claimed exemption of interest income and dividend income of Rs. 4,04,46,012/- under Section 80P(2)(d) of the Act. However, the Assessing Officer disallowed the claim of exemption under Section 80P(2)(d) of the Act by holding that the assessee could not establish the direct nexus between the funds used for investments and the Cooperative Societies own funds and therefore, disallowed the aforesaid interest and dividend income on which deduction under Section 80P(2)(d) of the Act was claimed amounting to Rs. 4,04,46,012/-.
In appeal CIT(A) allowed the appeal of the assessee with the following observations:
“5.3.6 It is true that Co-operative banks pursuant to the insertion of subsection (4) to Sec.80P would not be entitled for claim of deduction under Sec. 80P of the Act, but a &1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 5– co-operative bank continues to be a co-operative society registered under the Co- operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State for the registration of co-operative societies. Therefore, the interest income derived by a co-operative society from its investments held with a co-operative bank would be entitled for claim of deduction under Sec.80P(2)(d) of the Act. In view of the principles laid down by the Supreme court in the case of the Mavilayi Service Co-op Bank and Others Vs CIT, Calicut in Civil Appeals No.7343-7350 & 8315 of 2019 (Diary No.31268 of 2019) vide order dated 12.01.2021 and in Kerala State Cooperative Marketing Federation Ltd. and Ors. [(1998) 5 SCC 48], I am of the considered opinion that the interest income received by the appellant society from Cooperative banks is eligible for deduction u/s. 80P(2)(d) of the Act. The disallowance of Rs. 4,04,46,012/- made by the AO is hereby deleted. Appellant gets relief. Ground number 2 of appeal is allowed.”
The Department is in appeal before us against the aforesaid order passed by Ld. CIT(A) allowing the appeal of the assessee.
Before us, Ld. D.R. placed reliance on the observation made by the Assessing Officer in the assessment order.
In response, the Counsel for the assessee submitted that the own funds of the assessee are Rs. 108.51 crores (14.37 crores capital and Rs. 94.14 crores as reserves and surplus). Further, the Counsel for the assessee submitted that the peak balance of investment in deposit with cooperative banks and societies during the year ending 31.03.2016 amounting to Rs. 95.79 crores, whereas the assessee had shown investments in share and securities of Rs. 19.28 crores as is evident from the assessment order. Therefore, interest free funds are more than investments made by the assessee in shares and deposits and the natural presumption to be made that such investments have been made out of own funds by the assessee. The Counsel for the assessee placed reliance on the decision of Mumbai High Court in the case of Reliance Utilities and Power Ltd. 313 ITR 340 and the decision of Supreme Court in the case of Munjal Sales Corporation 298 ITR 298. &1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 6– Further, the Counsel for the assessee submitted that this issue is covered in favour of the assessee by the decision of ITAT Ahmedabad in assessee’s own case for A.Y. 2009-10 in as well as in assessee’s own case for A.Y. 2012-13 in ITA No. 1905/Ahd/2016. Further it was submitted that the above decisions were also affirmed by the Gujarat High Court for A.Y. 2009-10 Tax Appeal No. 473 of 2014 and for A.Y. 2012-13 in Tax Appeal No. 1312 of 2018 as well. Therefore, since the issue is now squarely covered in favour of the assessee, there was no error in the order of Ld. CIT(A) so as to call for any interference. Further, the Counsel for the assessee also submitted that this fact has not been disputed that the income claimed under Section 80P(2)(d) of the Act was received from investments in cooperative societies and cooperative banks and hence assessee was eligible for deduction under Section 80P(2)(d) of the Act. Further, the Assessing Officer for A.Y. 2021-22 after discussing a similar issue during the course of V.C. hearing did not make any variation to the return of income of the assessee and accordingly, for this reason as well this issue may be allowed in favour of the assessee.
We have heard the rival contentions and perused the material on record.
It would be useful to reproduce the relevant extract of the order in assessee’s own case in for your ready reference:
“8. The next question arose, whether the claim made under section 80P(2)(d) could be disallowed to the assessee on reasoning given by the ld.AO? In the show cause, the ld.AO sought to disallow the deduction on the strength of section 14A of the Act, which contemplates that expenditure attributable to earning of exempt income will not be allowed as deduction to the assessee. The AO himself thereafter examined the issue with that angle. He ought to have identified the expenditure attributable of &1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 7– earning of interest income amounting to Rs.95,17,270/- as well as for earning the alleged dividend income from other cooperative societies. We have extracted the reply given by the assessee. It has already deducted interest paid of Rs.13,202/-. Meaning thereby, net interest income of Rs.95,04,068/- has been claimed as exempt under section 80P(2)(d) of the Act. The AO presumed that the assessee must have utilized interest bearing funds for making investment, therefore, the whole of income earned by way of dividend and interest deserves to be treated as disallowed with help of section 14A. The AO ought to have carved out specific expenditure relatable to the earning of such income, and thereafter worked out net dividend income as well as interest income on which deduction under section 80P(2)(d) could be allowed. He did not take such step. Nevertheless, we have examined the facts in the light of earlier years’ decisions. The assessee has demonstrated availability of funds as highlighted in sub-paragraphs (iii) and (iv) of its reply submitted before the AO vide letter dated 10.9.2014. It is pertinent to mention that the assessee has made fixed deposits with cooperate banks and societies at Rs.35.93 cores (Rs.25 crores fixed deposits plus Rs.3.01 crores call deposits plus Rs.7.92 crores investment in cooperative society shares). As against these investments, it has surplus funds of Rs.63.62 cores (Rs.10.19 crores capital plus Rs.53.43 crores reserves and surplus). The ld.AO has not examined availability of these funds with an analytical process. Rather, he made reference to the gross-figure of various years. He has to identify the availability of funds in this year. The assessee has specifically submitted the details, exhibiting nexus between the availability of funds vis-à-vis its investment. It has demonstrated that interest free funds were more than the investment, and therefore, no disallowance could be made with help of section 14A out of deduction income and interest income earned by it for claiming dividend income under section 80P(2)(d) of the Act. Respectfully following the order of the ITAT, which has been upheld by the Hon’ble High Court in the assessment year 2009-10, we do not find any merit in this ground of appeal
. It is rejected.
11. Accordingly, in view of the above in light of the assessee’s fact, we find no error in the order of Ld. CIT(A) so as to call for any interference.
12. In the result, Ground No. 1 of the Department’s appeal is dismissed.
Ground No. 2: Disallowance of additional depreciation claimed for addition in new machinery in preceding year of Rs. 8,31,15,592/-
The facts of this issue are that depreciation of Rs. 8,31,15,592/- is in respect of assets put to use during F.Y. 2014-15 i.e. preceding assessment and additional depreciation of such assets @ 10% to be put to use for less than &1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 8– 180 days and allowed by the Department in assessment proceedings. The remaining additional depreciation of 10% on the aforesaid assets which were put to use for less than 180 days in the preceding assessment year has been claimed by the assessee during the impugned year under consideration.
In appeal CIT(A) allowed the appeal of the assessee with the following observations:
“6.1 It is seen from the assessment order that the assessee has claimed additional depreciation amounting to Rs. 8,31,15,592/- during the year under consideration which related and equal to 10% of the cost of the machinery purchased and put to use in the period less than 180 days in financial year 2014-15 and remaining to claim in preceding year as additional depreciation. The AO held that intention of the legislature is to give such additional deprecation for the year in which assets were put to use and not for any succeeding years. There is nothing in the statute this allowance carry forward such depreciation and thus it cannot be any presumption that unless it is specifically denied, therefore, claim of the assesee is not allowable and an amount of Rs. 8,31,15,592/- disallowed. 6.2 During the course of appellate proceedings, it is submitted that vide Finance Act 2015 w.e.f. 1.4.2016, third proviso to sec. 32(1)(ii) of the Act has been inserted which provides that if asset is acquired by the assessee during the previous year and is put to use for the purpose of business or profession for a period of less than 180 days remaining 10% of the additional depreciation shall be allowed in the immediate subsequent previous year. 6.3 I have gone through the grounds of appeal
, assessment order and the submissions of the appellant. The third proviso to section 32 was inserted vide the Finance Act, 2015, with effect from 1.4.2016. It provides that if an asset eligible for additional depreciation under sec 32(1)(iia) has been put to use for less than 180 days in the year of acquisition then in that year the assessee would be eligible to avail only 50% of the prescribed rate of depreciation, however in the subsequent year, the assesee can claim the remaining depreciation. In view of the above, the AO is directed to allow the claim of the appellant. Appellant gets relief. Ground number 3 of appeal is allowed.”
15. The Department is in appeal before us against the aforesaid relief granted by Ld. CIT(A).
Before us, Ld. D.R. placed reliance on the observations made by the Assessing Officer in the assessment order.
&1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 9– 17. In response, the Counsel for the assessee placed reliance on the observations made by the Ld. CIT(A) in the appellate order.
We observe that Section 32(1)(iia) of the Act provides for additional depreciation at the rate of 20% of actual cost to be claimed by the assessee in respect of new plant and machinery which has been acquired and installed after 31 March 2005, where the assessee is engaged in manufacture of any article or thing. It is to be noted that vide Finance Act 2015 w.e.f. 01 April 2016, third proviso to Section 32(l)(ii) of the Act has been inserted which provides if asset is acquired by the assessee during the previous year and is put to use for the purposes of business or profession for a period of less than one hundred and eighty days then the remaining 10% of the additional depreciation shall be allowed in the immediate subsequent previous year. Thus, it is clear from the above insertion of proviso that the Income Tax Act, 1961 itself w.e.f 01 April 2016 allows claim of balance 10% additional depreciation in subsequent years. Without prejudice to the above, even before the insertion of the above proviso, various judicial precedents have held that assessee is entitled for remaining 10% of additional depreciation in subsequent year. In the case of Delhi ITAT in case of Cosmo Films Ltd. [2012] 24 taxmann.com 189 and in the decision of Cochin ITAT in the case of Apollo Tyres Ltd. 45 taxmann.com 337 Mumbai ITAT in the case of MITC Rolling Mills (P) Ltd., in the decision of Delhi ITAT in the case of M/s. Aswani Industries in ITA No. 140/Ahd/2013. Apart from the above, we observe that Ahmedabad ITAT in assessee's own case for AY 2012-13, has allowed the balance 10% of the additional depreciation and deleted the disallowance made by Assessing &1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 10– Officer. Relying on the above decision, the Ahmedabad ITAT in A.Y. 2013- 14 & A.Y. 2014-15 was produced before us as part of Paper Book. For AY 2021-22, the Ld. Assessing Officer issued SCN dated 5th December 2022 for the similar issue. The assessee submitted its reply dated 12th December 2022 and also discussed the issues during the VC hearing. After considering the submissions and hearing, the AO passed the assessment order under Section 143(3) of the Act dated 20th December 2022 without making any variation to the returned income or on the ground which was proposed in the SCN. The issue under appeal before us is same which has been accepted by the Department in subsequent assessment proceedings, therefore, we are of the considered view that the addition is liable to be deleted.
In view of the above, we are of the considered view that there is no infirmity in the order of Ld. CIT(A) so as to call for any interference.
In the result, Ground No. 2 of the Department’s appeal is dismissed.
Ground No. 3: Disallowance of depreciation and additional depreciation claimed on Can’s and Equipment amounting to Rs. 1,07,64,866/-
The brief facts in relation to this ground of appeal
are that during the course of assessment proceedings, the Assessing Officer disallowed the assessee’s claim for depreciation on Milk Cans and Equipments amounting to Rs. 1,07,64,866/- on the ground that they do not qualify as “Plant and Machinery”. In appeal Ld. CIT(A) allowed the appeal of the assessee with the following observations: &1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 11– “7.2 During the course of appellate proceedings, it is submitted that the milk CANs are part of the entire plant and machinery used for the purpose of manufacturing milk and milk products. 7.3 I have gone through the submissions of the appellant. The Coordinate Bench of the ITAT vide dtd. 9.6.2018 the disallowance of additional depreciation made by the AO is deleted. Respectfully following the decision of the Coordinate bench, the AO is directed to delete the addition made of Rs.1,07,64,866/-. Appellant gets relief. Ground No. 4 of the appeal is allowed.”
22. The Department is in appeal before us against the aforesaid order passed by Ld. CIT(A).
Before us, Ld. D.R. placed reliance on the observations made by the Assessing Officer in the assessment order.
In response, the Counsel for the assessee submitted that the milk cans and equipments are part of “cattle feed” plant used for manufacturing fodder for cattle feed. Such equipments are part of laboratory test and milk containers are used for Artificial Insemination dose and milk analyser. Milk cans are used for collecting the milk from the farmers, then for testing quality of milk by putting it into the chain process of the plant, in such time the milk has been transferred for further process. These containers are metals cans, provided with a lid and come in different sizes, measurable in liters. It was submitted that milk cans as well as equipments are part of “plant and machinery” which helps in production of milk and milk products and therefore, fall under the head “plant and machinery” and are eligible for additional depreciation under Section 32(1)(iia) of the Act. It was submitted that the issue is covered in favour of the assessee by the decision of ITAT Ahmedabad in assessee’s own case for A.Y. 2012-13 in ITA No. 1905/Ahd/2016. Further, the ITAT in assessee’s own case for A.Y. 2013-14 &1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 12– and 2014-15 has accepted the rate of 15% for the purpose of depreciation and additional depreciation on milk cans and equipments. Copy of the order of ITAT for A.Y. 2013-14 and A.Y. 2014-15 were also produced before us for our perusal.
On going through the facts of the instant case and on perusal of the orders of ITAT produced before us for our perusal, we are of the considered view that there is no infirmity in the order of Ld. CIT(A) so as to call for any interference. It would be useful to reproduce the relevant extracts of the order of ITAT in assessee’s own case for A.Y. 2012-13 for ready reference:
9. Ground No.2: In this ground, grievance of the Revenue is that the ld.CIT(A)) has erred in deleting disallowance of additional depreciation of Rs.33,80,446/-. It is pertinent to mention that the assessee has claimed additional depreciation on milk canes. The ld.AO has disallowed the claim of the assessee on the ground that such canes were used for transporting the milk from village to plant, and therefore, does not form part of plant & machinery. The ld.CIT(A) deleted the disallowance by observing that the AO himself treated milk cans as plant and allowed depreciation at the rate of 15%. In other words, he has allowed the depreciation at normal rates and refused to allow additional depreciation. According to the ld.CIT(A) expression “plant has been defined in section 43(3) which reads asunder: Section 43(3): “Plant” includes ships, vehicles, books, scientific apparatus and surgical equipment used for the purposes of the business or profession (but does not include tea bushes or livestock or buildings or furniture and fittings) 10. After considering the above definition, the ld.CIT(A) has deleted the disallowance.
With the assistance of the ld.representatives, we have gone through the record carefully. A perusal of the order of the ld.CIT(A) would indicate that there is no distinction between the expression “plant” for allowing normal depreciation vis-à-vis additional depreciation on that item. The ld.AO has created an artificial distinction on that ground. After going through the order of the ld.CIT(A) we are satisfied that the ld.CIT(A) has examined the issue with all possible angle, and thereafter held that depreciation is admissible to the assessee. Therefore, we do not find any merit in this ground of appeal
. It is rejected.”
26. Accordingly, in light of the above discussion, Ground No. 3 of the Department’s appeal is dismissed.
&1589/Ahd/2024 & 1648/Ahd/2024 DCIT vs. Sabarkantha District Co.op. Milk Producers Union Ltd. Asst. Years –2016-17, 2017-18 & 2018-19 - 13–
We observe that similar grounds have been raised by the Department for the balance years as well, accordingly, in light of the above discussion the appeal of the Department is dismissed for other years as well.
In the combined result, all the appeals filed by the Department are dismissed. This Order is pronounced in the Open Court on 19/02/2025
Sd/- Sd/- (NARENDRA P. SINHA) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 19/02/2025 TANMAY, Sr. PS TRUE COPY आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. 2. ��थ� / The Respondent. 3. संबंिधत आयकर आयु� / Concerned CIT 4. आयकर आयु�(अपील) / The CIT(A)- 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER,