Pr. Cit-2 Kolhapur v. M/S Rds Construction Co

dik IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. INCOME TAX APPEAL NO. 60 OF 2017 Pr. CIT-2 Kolhapur vs M/s RDS Construction Co. ...Appellant ...Respondent. Mr N.N.Singh for the Appellant. ..... ..... CORAM : AKIL KURESHI & B.P.COLABAWALLA, JJ.FEBRUARY 13, 2019. P.C. : This appeal is filed by the Revenue challenging the Judgment of the Income Tax Appellate Tribunal. The following questions are presented for our consideration “(A)Whether on the facts and in the circumstances of the case and in law, theHon'ble ITAT erred in allowing depreciation @ 80 % on civil construction,electrical and other non-integral installations?Hon'ble ITAT erred in allowing depreciation @ 80 % on civil construction,electrical and other non-integral installations? (B) Whether on the facts and in the circumstances of the case and in law, theHon'ble ITAT erred in allowing depreciation @ 80 % on civil work on whichdepreciation was allowable @ 10 % and since civil works are not speciallydesigned devices, the same are not entitle for higher rate of depreciation?Hon'ble ITAT erred in allowing depreciation @ 80 % on civil work on whichdepreciation was allowable @ 10 % and since civil works are not speciallydesigned devices, the same are not entitle for higher rate of depreciation? (C) Whether on the facts and in the circumstances of the case and in law, theHon'ble ITAT erred in allowing higher rate of depreciation on electrical andother installations without appreciating the fact that electrical items are notpart of electricity generating apparatus but are part of electricity sellingapparatus and these constitute the block “Plant and Machinery” on whichdepreciation is allowable @ 15 %?” Hon'ble ITAT erred in allowing higher rate of depreciation on electrical andother installations without appreciating the fact that electrical items are notpart of electricity generating apparatus but are part of electricity sellingapparatus and these constitute the block “Plant and Machinery” on whichdepreciation is allowable @ 15 %?” 2Learned counsel for the Revenue brought to our notice an order dated 30[st] January, 2019 in Income Tax Appeal No.1769 of 2016 Pg 1 of 2 in which all these questions as reproduced above, came up forconsideration. While disposing of the Revenue's appeals, following observations were made “7.Question Nos. (ii), (iii) and (iv) relate to the Revenue's objection to theassessee claiming higher rate of depreciation on the civil construction, electricand other installations by the assessee in the process of erecting and installingwindmill. The Revenue argues that the expenditure in such activities cannot beseen as a part of installation of windmill and, therefore, the depreciationprescribed for the same would not be available to the assessee. We notice thatthe similar question had come up for consideration before this Court in IncomeTax Appeal No. 1326 of 2010, wherein the appeal was dismissed by order dated14[th] June, 2017 making following observations:- “2.The Tribunal has recorded finding of fact that windmill waserected in the desert area of Rajasthan which required specialfoundation of reinforced cement concrete and that the saidreinforced cement concrete formed integral part of the windmill. TheTribunal has also followed the decision of this Court in the case ofCommissioner of Income Tax Vs. Herdilla Chemicals Ltd. recordedin (1995) 216 I.T.R. 742 (Bom) in allowing the claim of theassessee. In our opinion, the finding recorded by the Tribunal thatRCC foundation forms integral part of the windmill is a finding offact and no question of law arises from the same. Hence, the appealis dismissed with no order as to costs” 8.In the result, these additional questions are not entertained.” 3In the result this Income Tax Appeal is dismissed. No order as to costs. (B.P.COLABAWALLA, J.) (AKIL KURESHI, J.) Pg 2 of 2