C/Taxap/65/2018 Order v. No Question Of Law Arises. Tax Appeal Is Dismissed

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/TAX APPEAL NO. 65 of 2018 ==========================================================PRINCIPAL COMMISSIONER OF INCOME TAX 1VersusDHOLU CONSTUCTION AND PROJECTS LTD==========================================================Appearance:MRS MAUNA M BHATT(174) for the PETITIONER(s) No. 1========================================================== CORAM: HONOURABLE MR.JUSTICE AKIL KURESHIandHONOURABLE MR.JUSTICE B.N. KARIA Date : 19/03/2018 ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) Revenue is in appeal against the judgment of the Income Tax Appellate Tribunal dated 20.3.2017 raising the following question for our consideration : “Whether the Appellate Tribunal has erred in law and on facts by not appreciating the findings of the Assessing Officer that the assessee was not manufacturer u/s 2(29BA) so that the additional depreciation of Rs.67,20,175/­ was not admissible?” Issue pertains to additional depreciation claimed by the assessee under section 32 (1)(iia) of the Income Tax Act on the ground that the assessee was engaged in business of manufacture or production of any article or thing. Undisputably, facts are that the assessee was engaged in mining activity for which additional machinery was purchased and deployed. Revenue however denied the additional depreciation on the ground that the assessee was not the owner of mines and therefore, could not be stated to have produced or manufactured any article or thing, a view even CIT(Appeals) upheld. The Tribunal however, relying on judgments of Supreme Court in case of Commissioner of Income Tax v. Sesa Goa ltd reported in 271 ITR 331 and this Court in case of General Contracts Co. v. Commissioner of Income­tax reported in (2006) 287 ITR 416 granted depreciation. The Tribunal took note of the agreements the assessee had entered into with Mineral Corporation of Gujarat and Rajasthan States which outlined the assessee's scope of work also. This included mining of lignite, loading the same into truck after employing hydrolic excavator and other equipments. The Tribunal correctly observed that section 32(1)(iia) nowhere refers to the concept of owning the mining. No question of law arises. Tax Appeal is dismissed. (AKIL KURESHI, J) raghu (B.N. KARIA, J)