The Pr. Chief Commissioner Of Income Tax (Central), Nagpur… v. M/S. R.b. Seth Shreeram Narsingdas, Nagpur

IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH, NAGPUR INCOME TAX APPEAL NO.56 OF 2018 The Pr. Chief Commissioner of Income Tax (Central), Nagpur… Appellant Versus M/s. R.B. Seth Shreeram Narsingdas, Nagpur and another…Respondent Mr. Anand Parchure, Advocate for Appellant. Mr. Anand Jaiswal, Senior Advocate, assisted byShri S.N. Dongre, Advocate for Respondents. CORAM : NITIN JAMDAR & ANIL S. KILOR, JJDATE : 22 JANUARY 2021 P.C. : This Appeal filed under Section 260A of the Income TaxAct, 1961 pertains to the Assessment Year 2006-07. Out ofvarious questions taken in the appeal memo, the followingquestion is pressed before us : “e.Whether on the facts and circumstances of the caseand in law, the Hon’ble ITAT erred in deleting thedisallowance of Rs.2,75,60,358/- being additionaldepreciation on Windmills claimed by the assessee byholding that no incriminating material was found on thisissue?” 2.The Respondent- Assessee is a Partnership Firm engagedin the business of mining and manufacturing of iron ore. TheRespondent filed a return of income under Section 139 of theIncome Tax Act, 1961 on 31 October 2006 for the AssessmentYear 2006-07. Assessment under Section 143(3) of the Act wasdone on 29 December 2008 assessing the total income ofRs.27,86,04,750/-. Search proceedings were initiated underSection 132 on 24 September 2010. A notice under Section 153Awas served on the Respondent on 12 September 2011 and theRespondent filed a return of income declaring the total income atRs.27,62,90,309/-. The Assessing Officer disallowed the additionof Rs.2,75,60,358/- on account of disallowance of additionaldepreciation on Windmills. The Respondent- Assessee filed anappeal and the Commissioner of Income Tax deleted the addition.The Appellant- Revenue filed an appeal before the Income TaxAppellate Tribunal. The Tribunal dismissed the Appeal of theRevenue by the impugned order dated 27 December 2017,upholding the order passed by the Commissioner of Income Tax(Appeals) passed on 27 March 2015. 3.Mr. Anand Jaiswal, the learned Senior Advocate for theRespondent- Assessee, has placed before us a copy of the orderpassed by the Division Bench of this Court in Income Tax AppealNo.21 of 2011 with Income Tax Appeal No.22 of 2011,dated 18 July 2017. These Appeals arose from exercise of powersby the Commissioner of Income Tax under Section 263 of the Act,treating the order passed by the Assessing Officer as erroneous and Lanjewar prejudicial to the interest of the Appellant- Revenue. Show causenotice was issued to the Respondent to justify its claim foradditional depreciation on Windmills under Section 32(1)(iia) ofthe Act. The order was passed by the Commissioner of IncomeTax under Section 263 of the Act on 9 July 2010 setting aside theorder passed by the Assessing Officer on 29 December 2008.Thereafter the proceedings reached this Court and in Appeal, thesame question regarding additional depreciation of 20% onWindmill under Section 32(1)(iia) of the Act was raised and washeld against the Revenue. This decision was rendered by thisCourt on 18 July 2017. 4.The learned Counsel for the parties state that due to lack ofcommunication, this order could not be pointed out when theimpugned order came to be passed by the Tribunal on27 December 2017. In any case, it is an admitted position thatthis Court has already held the question of law raised in thepresent Appeal against the Appellant- Revenue. 5.In these circumstances, no question of law arises in thisAppeal. The Appeal is dismissed. (ANIL S. KILOR, J) (NITIN JAMDAR, J) Digitally signedby PrashantLanjewarDate:2021.01.2814:52:30+0530 PrashantLanjewar