Pr. Commissioner Of Income Tax -2 v. M/S. Pranav Agro Industries Ltdofficial Liquidator, High Court, Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J.INCOME TAX APPEAL 333 OF 2017 Pr. Commissioner of Income Tax -2 Versus ..Appellant M/s. Pranav Agro Industries LtdOfficial Liquidator, High Court, Mumbai..Respondent ................... Mr. Sham Walve for the Appellant None present for the Respondent ................... CORAM : AKIL KURESHI & S.J. KATHAWALLA, JJ. DATE : JULY 8, 2019. P.C.: 1.Revenue has filed this appeal challenging the judgmentof the Income Tax Appellate Tribunal, Pune ("the Tribunal"for short) dated 9.5.2016. 2.Following questions are presented for our consideration: (A) Whether on the facts and circumstances of the case and inlaw, the Tribunal erred in disregarding the motive of the tax payer oftax evasion on the basis of retrospective new investment policy,which was drafted just to claim / avail benefit of exemption andconcessional rate of tax? Whether in law, facts and circumstances ofthe case, the Tribunal was correct in allowing the deduction u/S. 80JJA of the Act without appreciating that baggase / husk is not awaste but is a by-product of agri-produce processing industry whichwas purchased and not collected and processed or treated by theassessee, which is a prerequisite for claiming deduction underSection 80JJA of the Act? (B) Whether in law, facts and circumstances of the case, theTribunal was correct in allowing the assessee's claim of depreciationon windmills when the assessee was not a registered owner of thewindmills and it was purchasing electricity from NAV MaharashtraChakan Oil Mills Ltd (NMCOML) thus having no title / dominion andright to use the assets? (C) Whether in law, facts and circumstances of the case, theTribunal was correct in deleting the addition due to disallowance onaccount of employee's contribution to Provident Fund (PF),Employee's State Insurance Corporation (ESIC) and MaharashtraLabour Welfare Fund and ignoring the fact that the employee'scontribution to such welfare funds is governed by the Provisions ofSection 36(1)(va) of the I.T. and not by Section 43B, as clarified byBoard's Circular No. 22 of 2015 dated 17.12.2015? 3.In so far as Question No. (A) is concerned, we noticethat the issue is covered by the decision of the DivisionBench of this Court in case of CIT, Pune Vs. Padma S.Bora[1]. This question is therefore, not considered. 4. With relation to Question No. (C), the same is covered by the decision of this Court in the case of CIT-Central Vs.1[2013] 355 ITR 368 (Bom)1[2013] 355 ITR 368 (Bom) Ghatge Patil Transports Ltd[2] in which it has held that thebenefit of deduction of the employees' contribution to theprovident fund would also be available as long as the same ismade before filing of the return. This question is, therefore,not considered. 5.The sole surviving question pertains to the assessee'sclaim of depreciation on purchase of windmill. The AssessingOfficer was of the opinion that the assessee not being theregistered owner of the windmill could not have claimed thesame. The Commissioner and the Tribunal, however,concurrently came to the conclusion that the assessee hadpurchased windmill for total consideration of Rs. 1.10 Crores.The payments were made between August 2007 to March2008 through bank channel. The Sales Tax EntitlementCertificate of the assessee was also accordingly modifiedw.e.f. 5.12.2007. Memorandum of Understanding dated1.6.2007 under which the said machinery was acquired bythe assessee was also produced on record. It was, afterexamination of such materials on record, the Commissionerand the Tribunal concurrently held that the assessee had in2(2014) 368 ITR 749 (Bom) fact purchased windmill and therefore, was entitled to claimdepreciation thereon. No question of law arises. Income TaxAppeal is dismissed. [ S.J. KATHAWALLA, J. ] [ AKIL KURESHI, J ]