DCIT, PONDICHERRY vs. GRACE INFRASTRUCTURE PVT. LTD., PONDICHERRY

आदेश / O R D E R

PER GEORGE MATHAN, JUDICIAL MEMBER:

the Order of Commissioner of Income Tax (Appeals), Puducherry , in dated 22.03.2016 for the AY 2006-07 & CO No.139/Mds/2016 is a Cross-Objection filed by the assessee in the Revenue’s appeal No.1899/Mds/2016 . ITA No.3273/Mds/2016 is an appeal filed by the Revenue against the Order of Commissioner of Income Tax (Appeals), Puducherry, in ITA No.518/CIT(A)-Pdy/2013-14 dated 22.03.2016 for the AY 2007-08 & CO No.11/Mds/2017 is a Cross- Objection filed by the assessee in the Revenue’s appeal No.3273/Mds/2016.

2.0 Mr.Sailendra Mammidi, CIT., represented on behalf of the Revenue and Ms.J.Sree Vidya, Adv., represented on behalf of the assessee.

3.0 As the issues in both the appeals are inter-connected, common and relate to the same assessee, both are disposed of by this common order.

4.0 The common issue in both the appeals of the Revenue against the action of the Ld.CIT(A) in allowing the claiming of depreciation at 80% on the wind mills. It was submitted by the Ld.DR that the assessee has not & 3273/Mds/2016 CO No.139/Mds/2016 & CO No.11/Mds/2017 :- 3 -: exercised the option under Rule-5(1) of the IT Rules, 1962 r.w.s.32(1)(ii).

The AO had disallowed the assessee’s claim for higher rate of depreciation at 80%. It was fairly agreed by both the sides that the issue was squarely covered by the decision of the Hon’ble Jurisdictional High Court of Madras in the case of CIT Vs. Kikani Exports Pvt. Ltd. reported in 369 ITR 500 wherein which has been held that the assessee is entitled to claim of depreciation on wind mills at 80% if the option is exercised in the return filed within the time limit prescribed under the second proviso to Rule 5(1A) of IT Rules. It was a submission by the Ld.AR that the assessee having filed return of income within the time provided u/s.139(1) and having claimed higher rate of depreciation at 80%, in view of the decision of the Hon’ble Jurisdictional High Court referred to supra, the assessee was entitled to the higher rate of depreciation.

4.1 We have considered the rival submissions. As it is noticed that the Ld.CIT(A) has followed the decision of the Hon’ble Jurisdictional High Court in the case of Kikani Exports Pvt. Ltd., referred to supra, we find no error in the findings of the Ld.CIT(A) which calls any interference on this issue. In these circumstances, Ground No.2 of the Revenue’s appeal in and Ground Nos.2 & 3 of the Revenue’s appeal in ITA No.3273/Mds/2016 stands dismissed. & 3273/Mds/2016 CO No.139/Mds/2016 & CO No.11/Mds/2017 :- 4 -:

5.0 In regard to Ground No.3 of the Revenue’s appeal in it was submitted by the Ld.DR that the issue was against the action of the Ld.CIT(A) in deleting the addition of Rs.27.00 lakhs made u/s.68 by admitting fresh evidence. It was a submission that in the course of the assessment, it was noticed that the assessee had shown a loan of Rs.27.00 lakhs from Shri L.M.Shah, the MD of the assessee company whereas the records of Shri L.M.Shah for the relevant AY did not show the amount of Rs.27.00 lakhs. It was a submission that before the Ld.CIT(A) it was explained by the assessee that the amount was received from Shri A.L.Shah and not from Shri L.M.Shah and it was only a clerical mistake of the Accountant of the assessee company which had been rectified. It was a submission that the Ld.CIT(A) had accepted the claim of the assessee without granting the AO opportunity to examine the same.

5.1 In reply, the Ld.AR submitted that she had no objection if this issue was restored to the file of the AO for examination.

5.2 We have considered the rival submissions. As admitted by the Ld.AR the issue of cash credit of Rs.27.00 lakhs made by invoking the provisions of Sec.68 has to be restored to the file of the AO for re- adjudication to verify as to whether the same was given by the MD, Shri L.M.Shah or was loan taken from Shri A.L.Shah, wrongly accounted in the & 3273/Mds/2016 CO No.139/Mds/2016 & CO No.11/Mds/2017 :- 5 -: ledger of Shri L.M.Shah. The AO shall re-adjudicate the issue after granting the assessee adequate opportunity to substantiate his claim.

6.0 In the result, the appeal filed by the Revenue in is partly allowed for statistical purposes and the appeal filed by the Revenue in ITA No.3273/Mds/2016 stands dismissed.

7.0 At the time of hearing, the Ld.AR did not wish to press the Cross- Objections filed by the assessee. Consequently, the Cross-Objections filed by the assessee stands dismissed as withdrawn.

Order pronounced in the Open Court on September 21, 2017, at Chennai.