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Income Tax Appellate Tribunal, DELHI BENCH: ‘A’, NEW DELHI
Before: SHRI O.P. KANT & SHRI K.N. CHARY
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘A’, NEW DELHI BEFORE SHRI O.P. KANT, ACCOUNTANT MEMBER AND SHRI K.N. CHARY, JUDICIAL MEMBER
ITA No.6357/Del/2015 Assessment Year: 2011-12 M/s. Bikanervala Foods Pvt. Vs. Deputy Commissioner of Ltd., Income Tax, A-28, Lawrence Road Circle-3(1), Room No. 390, Industrial Area, New Delhi C.R. Building, New Delhi PAN :AAACB0611P (Appellant) (Respondent)
Appellant by Shri Ranjan Chopra & Shri Deepak Goyal, CAs Respondent by Shri P.V. Gupta, Sr. DR
Date of hearing 03.06.2019 Date of pronouncement 06.06.2019
ORDER PER O.P. KANT, A.M.: This appeal by the assessee is directed against order dated 31/08/2015 passed by the Ld. Commissioner of Income-tax (Appeals)-2, New Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2011-12, raising following grounds:
The appellant seeks to take the following grounds in appeal, which are without prejudice to one another:
2 ITA No.6357/Del/2015 1. The learned Commissioner (Appeals) has erred in not giving relief on the grounds taken in the appeal against the assessment order in respect of additional depreciation on new plant & machinery. 2. The learned Commissioner (Appeal) has erred in holding that the plant machinery in question were not involved in the actual process of manufacture of food products/sweets/namkeens. 3. Your appellant craves leaves to add, alter, amedn or forego any grounds of appeal at the time of hearing.
Briefly stated facts of the case are that the assessee company was engaged in the business of manufacturing and selling of “sweets” and “Namkins” through various restaurants or outlets. For the year under consideration the assessee filed return of income on 24/09/2011, declaring total income of Rs.10,21,98,177/-. The case was selected for scrutiny and notice under section 143(2) of the Income-tax Act, 1961 (in short ‘the Act’) was issued and complied with. In the assessment completed on 21/03/2014 under section 143(3) of the Act, the Assessing Officer disallowed the claim of additional depreciation under section 32(1)(iia) of the Act on certain items of fixed assets. On further appeal, the Ld. CIT(A) upheld the disallowance on the grounds that:
(i) firstly, those items were not installed at the factory premises; and (ii) secondly those items were not involved in the actual process of manufacturing of food products/sweets/Namkins etc
3 ITA No.6357/Del/2015 2.1 Aggrieved with the finding of the Ld. CIT(A), the assessee is in appeal before the Tribunal, raising the grounds as reproduced above. 3. In the grounds raised, the assessee is aggrieved mainly with disallowance of additional depreciation claimed on certain items of fixed assets. 4. Before us, the Ld. counsel submitted that in immediately preceding assessment year, i.e., AY: 2010-11 the additional depreciation claimed under section 32 (1)(iia) of the Act on similar items was allowed by the Ld. CIT(A) and on further appeal by the Revenue, the finding of the Ld. CIT(A) were upheld by the Tribunal in ITA No. 4139/Del/2014 and the appeal of the Revenue was dismissed. He, accordingly, submitted that issue in dispute is covered in favour of the assessee. 5. The Ld. DR, on the other hand, relied on the order of the lower authorities, but could not controvert the submission of the Ld. AR that in assessment year 2010-11, the issue has been adjudicated in favour of the assessee. 6. We have heard the rival submission and perused the relevant material on record, including the paper book containing pages 1 to 67 filed by the assessee. As per the provisions of section 32 (1)(iia) of the Act, an assessee engaged in the business of manufacturing or production of any article or things is entitled to claim additional depreciation in respect of new plant or machinery (other than ships and aircrafts) acquired and installed after 31/03/2005, subject to fulfillment of specified conditions. The additional depreciation is allowable at the rate of 20% of the actual cost of such plant and machinery in the year in which same is required and put to use. Thus, the additional
4 ITA No.6357/Del/2015 depreciation is allowed only once and that too in the previous year in which eligible asset is acquired and installed and it shall be deductible while computing the Written Down Value (WDV) of the asset for the next year. However, as per the proviso to section 32 (1)(iia), the additional depreciation will not be available for the followings:
(i) any machinery or plant which was used by any other person, before its installation by the assessee (ii) any machinery or plant, which was installed in any office premises or residential accommodation including a guesthouse (iii) any office appliance or road transport vehicles (iv) any plant and machinery, the whole of at the actual cost of which was allowed a deduction( whether is depreciation or otherwise) in anyone previous year.
We find that in the year under consideration, the assessee claimed additional depreciation on following items of fixed assets:
S.No. Date Description Addition Installed at Retail 1. 30.06.2010 Top Sealer TS 150-123C 15,355/- Outlet 2. 30.06.2010 Top Sealer TS 150-95C 15,35.5/- -do- 3. 07.08.2010 Top Sealer TS 150-123C 15,355/- -do- 4. 07.08.2010 Top Sealer TS 150-95C 15,355/- -do- 5. 09.08.2010 Top Sealer TS 150-123C 200/- -do- 6. 09.08.2010 Top Sealer TS 150-123C 15,355/- -do- 7. 11.08.2010 Canopy 10,x8’x6’ 10,000/- -do- 8. 11.08.2010 Canopy 10’x8’x6’ 1 1,47,900/- -do- 9. 19.10.2010 Top Sealer TS 300 5 Portion 31,125/- -do- 10. 31.08.2010 Lassi Machine 16,167/- -do- 11. 31.08.2010 Heavy Mixi 20,170/- -do- 12. 13.01.2011 Top Sealer TS 200-69-2C 19,505/- -do-
5 ITA No.6357/Del/2015 13. 13.01.2011 Top Sealer TS 150-123C 30,710/- -do- 14. 18.02.2011 Daal Grinder Mancing 26,500/- -do- 15. 25.09.2010 SS Trolly 36,760/- -do- 16. 25.09.2010 SS Counter W/ss Canopy 67,626/- -do- 17. 25.09.2010 Charcoal Griller 11,444/- -do- 18. 25.09.2010 Table Top Burner 20,287/- 20. 29.07.2010 Gas Plant 64,482/- -do- 21. 07.10.2010 Top Sealer 31,125/- -do- 22. 27.09.2010 S.S. Double Body Tandoor 5,000/- -do- 23. 30.11.2010 Top Sealer TS 300-5 Portion 31,125/- -do- 24. 08.01.2011 S.S. Trolley 7,768/- -do- 25. 15.11.2010 Top Sealer 31,125/- -do- 26. 08.01.2011 S.S. Kadahi Table 15,566/- -do- 27. 08.01.2011 S.S. Selves Bracket Big 2,615/- -do- 28. 08.01.2011 S.S. Selves Bracket Small 2,615/- -do-
The Ld. CIT(A) has upheld the disallowance of additional depreciation mainly on two grounds. The first ground is that these items were not installed at the factory premises of the assessee. The second ground is that these items were not involved in the actual process of manufacturing of the food/sweets/namkeens etc. We find that in assessment year 2010-11 also additional depreciation was claimed on similar items of fixed asset and the Tribunal in ITA No.4139/12/2014 allowed the appeal of the assessee observing as under:
“7. After considering the rival submissions of the parties and perusing the entire material available on record, we find much force in the contention of the assessee that the assessee is engaged in the manufacturing activities. The ld. CIT(A) has also correctly dealt with the objection of the Assessing Officer regarding the activities of the assessee being that of a manufacturer. The ld.CIT(A) has also considered various case laws in support of his conclusion that the assessee comes within the category of a manufacturer. The contentions made by the assessee based on National Industrial Classification, referred to above, are also found acceptable on the point of assessee being manufacturer. We, therefore, do not find any justification to interfere with the findings reached by the ld. CIT(A) that the assessee is a manufacturer and was eligible to claim, on this count, the additional depreciation on the plants and machineries acquired and installed.
6 ITA No.6357/Del/2015
However, while going through the assessment order and the order of the ld. CIT(A), we find it obvious on record that the Assessing Officer, apart from doubting the activities of assessee, being that of manufacturer, has also objected, from the details of assets, that they are not installed in factory as the so called factory of the assessee is located at Lawrence Road and these items are utilized for offices or residential or show room purposes; that all of these items cannot be termed as plant & machinery e.g., the distribution penal at Faridabad is falling under the category of furniture & fixture and not under plant and machinery; that same is the case with other items also e.g. Air Conditioners are more in nature of office appliances rather than plant & Machinery; and that Inkjet printer installed at Faridabad is undoubtedly an office appliance and not plant & Machinery. It cannot be disputed that by virtue of proviso to section 32(1)(iia) of the Act, no additional depreciation is allowable the following eventualities. The relevant proviso reads as under : “Provided further that no deduction shall be allowed in respect of— (A) any machinery or plant which, before its installation by the assessee, was used either within or outside India by any other person; or (B) any machinery or plant installed in any office premises or any residential accommodation, including accommodation in the nature of a guest-house; or (C) any office appliances or road transport vehicles; or (D) any machinery or plant, the whole of the actual cost of which is allowed as a deduction (whether by way of depreciation or otherwise) in computing the income chargeable under the head "Profits and gains of business or profession" of any one previous year;” 9. In view of the aforesaid proviso, no additional depreciation is, inter alia, allowable to any assessee, even engaged in the manufacturing business, if the plant and machinery is installed in any office premises or any residential accommodation, including any guest house. It is also clear from the above proviso that no such deduction is permissible on any office appliances or road transport vehicles. Therefore, applying the above provisions, the claim of assessee is required to be tested. The assessee, as stated above, is engaged in manufacturing of sweets, as the assessee is engaged in the manufacturing activities and restaurant business. On each of the outlet, it manufactures sweets and other food products. It is also obvious from the financial statement that about 91% of the Revenue is collected by the assessee from manufacturing activities and 9% thereof is earned from restaurant. Also, the equipments or plants are installed at those premises. Further, the ld. AO has not brought any material on record to show that those plants are installed at any
7 ITA No.6357/Del/2015 office premises or any residential accommodation in the nature of guest house. It is also a matter of common knowledge that Air Conditioners are required at manufacturing outlets to keep the sweets also in proper condition over and above refrigerators. Electricity distribution penal also cannot be said to be installed at residential place. No material is brought on record by the AO that the outlets do not manufacture sweets. It is of paramount importance that the AO has granted normal depreciation on all those items holding them to be plant and machinery. In view of this, we are of the view that assessee has satisfied the conditions for additional depreciation. We, therefore, do not find any justification to interfere with the order of the ld. CIT(A) for allowing additional depreciation, as claimed by the assessee. Accordingly, the appeal of the Revenue deserves to be dismissed, being devoid of merits.”
On perusal of the above order of the Tribunal(supra) in the case of the assessee, we find that in para-7 the Tribunal has held the activity of the assessee as manufacturing and found the assessee eligible for claim of additional depreciation on plant and machinery. In paras-8 and 9, the Tribunal (supra) has held that the additional depreciation cannot be denied to the assessee for installing the items of the assets at retail outlets, because retail outlets are not either office promises or residential accommodation in the nature of the guesthouse as per the proviso to section 32(1)(iia) excluding the additional depreciation. In the year under consideration, also the items of fixed assets have been installed at various retail outlets and there is no dispute between the assessee and the Revenue on this factual aspect. Thus following the finding of the Tribunal, the additional depreciation in the year under consideration also cannot be disallowed on the ground that those items were not installed at the factory premises of the assessee. The second ground for rejection of additional depreciation is that these items are not involved in the actual process of manufacturing of food products/sweets/namkins. In the assessment year 2010-11, also
8 ITA No.6357/Del/2015 the Tribunal(supra) in paras- 9 observed that items of assets like air conditioners, electricity distribution panel etc are part of plant and machinery engaged for manufacturing of food products/sweets/ namkin etc. The items of fixed asset in the year under consideration are listed in the table above reproduced by us. There is no doubt that “TOP sealer” are used for sealing containers for supply of food to the customers, which is part of the process of manufacturing and delivery of the products of the assessee and thus additional depreciation on the same is allowable. The Canopy of Generator is part of the entire plant and machinery engaged for manufacturing. The Tribunal (supra) in assessment year 2010-11 allowed the additional depreciation on electrical panels, thus following the same finding; the additional depreciation on canopy of the generator is also allowable. Similarly, there is no doubt that the items Mixi, Lassi machine, Grinder Machine, Charcoal Griller, Table top burner, Gas Plant SS Double Body Tandoor, SS “Kadahi” Table, SS Selves Barcket Big and small are the items of assets engaged in manufacturing of food products/sweets/namkins etc. The trollys are also used for transferring of raw materials or finished products in the process of manufacturing of food products carried out by the assessee at the retail outlets. Thus, in view of the above discussion, we do not find the action of the Ld. CIT(A) in upholding the disallowance of additional depreciation as justified and accordingly, we reject the contention of the Ld. CIT(A) in upholding the disallowance. Respectfully following the finding of the Tribunal in the immediately preceding assessment year 2010-11 and our discussion above, we allow the claim of the additional depreciation of the assessee in the year under consideration also.
9 ITA No.6357/Del/2015 The grounds of the appeal of the assessee are accordingly allowed. 10. In the result, the appeal of the assessee is allowed.
Order is pronounced in the open court on 6th June, 2019.
Sd/- Sd/- [K.N. CHARY] [O.P. KANT] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 6th June, 2019. RK/-[d.t.d.s] Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi