Law v. Abhishek Industries Ltd.reported 256 Itr I, Relied Upon By Theassessing Officer?

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH ITA372()1Date of decision:02.07.2015 Commissioner of Income Tax-I, Ludhiana. ..Appellant Versus. Rakesh Gupta ...Respondent CORAMHONBLE MR. JUSTICE S.J. VAZIFDAR, ACTING CHIEF JUSTICEHON5BLE MR. JUSTICE G.S. SAANDHAWALI Present: Mr. Rajesh Katoch, Advocate,for the appellant. Mr. S.K. Mukhi, Advocate,for the respondent. ee S.J. VAZIFDAR, A.C.J. (QRAL) The appellant has raised the following substantial questions of law:- “(i) Whether on the facts and circumstancesof the case, the Hon’ble ITAT was right in lawin upholding the order of the ld. CIT(A)wherein @Qdisqllawance made under Sectio36(1)(iii) was deleted ignoring the judgementofHon’ble Punjab & Haryana High Court inthe case of CIT Vs Abhishek Industries Ltd.reported 256 ITR I, relied upon by theAssessing Officer? (ii) Whether on thefacts and circumstances ofthe case, the Hon’ble ITAT was Justified inlaw in upholding the order of the ld. CIT(A)wherein disallowance of higher depreciationon account of expenditure on installation ofelectrical line for power transmission andmetering treated as not part of Wind Mill bythe A.O. was deleted by the CIT(A)? (111) Whether on the facts and circumstancesof the case, the Hon’ble ITAT was right in lawIntreatingtheDOWEFevacuationinfrastructure as part of wind mill and asrenewable energy device whereas the AO hasbrought on record sufficient material to prove that same was in fact not a renewable energydevice and hence not eligible for depreciation@ 50%? (iv) Whether on thefacts and circumstances ofthe case, the Hon’ble ITAT was right in law inallowing depreciation on contribution forpower evacuation facility even though theassessee has no ownership of the asset beingonly a contributorfor availing thefacility? ” oOQuestions (11) (411) and (iv) are admittedly covered by a judgementof the Division Bench of this Court dated 18.12.2014 titled as.Commissionerof Income Tax-I, Ludhiana Vs M/s Eastman Impex~(ITA-350-2013). The,questions are answered against the appellant/department. The appeal as faras these questions are concerned is, therefore, dismissed. © 3 | As regards question (1), the appellant’s case is that an amount of | =8.89 crores was advanced by the respondent/assessee to his son. Therespondent/assessee on the other hand contends that during the assessmentyear in question 2008-2009, only aboutL2.14 crores was advanced by him|to his son. It would make no difference. The Tribunal has rightly upheld thedetailed and reasoned order of the CIT (Appeals). The CIT (Appeals) hasanalyzed the cash available with the respondent. For instance, the openingbalance of capital as on 01.04.2007 was about413.45 crores and the closingbalance as on 31.03.2008 was about|L10.40 crores. The opening balance ason 01.04.2007 was aboutL73.57 crores and the closing balance as on31.03.2008 was about=86.60 crores. The opening balance of interest free|unsecured loans from family and friends as on 01.04.2007 was about=55.95|crores and the closing balance of interest free unsecured loans from familyand friends as on 31.03.2008 was aboutL5] 46 crores. [t was not the case ofthe AO that the assessee had diverted the funds borrowed on interest for the that the AO had in fact accepted that no such borrowed funds had beendiverted/advanced by the assessee to his son. There was no nexus betweenthe funds borrowed by the assessee and the funds diverted/advanced to hisson. [There were free reserves available with the assessee to advance theinterest free loan to his son. It is not possible to hold that the appreciation of these facts wasperverse or absurd. No question of law, therefore, arises in this regard either. |4AThe appeal is accordingly dismissed. | 02.07.2015Amodh (S.J. VAZIFDAR)ACTING CHIEF JUSTICE (G.S. SANDHAWALIA) |JUDGE