TaxTMI 
TaxTMI 
2014 (4) TMI 740
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....see's appeal (AY 2007-08) : GROUNDS ITEM NO.1: ADDITION OF RS.6,39,93,408/- ON ACCOUNT OF CLOSING STOCK ARISING OUT OF CHANGE IN ACCOUNTING POLICY IN THE NEXT FINANCIAL YEAR 2007-08 (A.Y. 2008-09) I The learned CIT(A) Gandhinagar has grossly erred on the facts and circumstances of the case & in law in upholding the decision of the learned A.O. by confirming the addition of Rs.6,39,93,08/- on account of closing stock arising out of change in accounting policy in the next financial year 2007-08 (A.Y. 2008-09). The learned CIT(A) has confirmed the addition by stating that "The stock take over due to taking up over the demerged business of GSPC as given in notes to accounts has to be accounted by appellant during this year. So, non inclusion of the above closing stock of gas is not acceptable in view of the provisions of section 145(3) and accordingly book results are rejected. This is supported by the notes to accounts as mentioned above given in the annual report of the assessee. Accordingly, the above closing stock needs to be taken into account even if there arises to taxable income." The learned CIT(A) has grossly erred by not accepting the facts that stock of p....
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....an be raised before the Hon'ble ITAT. 1. The appellant prays that on the facts and circumstances of the case of the ground of appeal addition pertaining to prior period expenses of Rs.15,45,925/- claimed in appeal bearing ITA # 1390/Ahd/2012 for A.Y. 2008-09 is not accepted o the ground that the expenses pertain to this Assessment year then direction be given to allow the same in A.Y. 2007-08. Appellant craves leave to add, amend, alter, change, delete and edit the above ground of appeal before or at the time of the hearing of the appeal. (B) Revenue's appeal (AY 2007-08) : (1) The learned CIT(Appeals) has erred in law and on facts in deleting the addition of Rs.1,12,14,863/-, made on account of disallowance of depreciation claimed on the fixed assets under the head "Intangibles- Right of Way (ROW) and Permissions". (2) On the facts and circumstances of the case the Ld.CIT(A) ought to have upheld the order of the Assessing Officer. (3) It is therefore prayed that the order of the learned CIT(Appeals) may be set aside and that of the A.O. be restored to the above extent. Revenue has raised the following additional ground: 1. The learned CIT(Appeals) h....
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....any decided to account for the same as an inventory as at 31st March-2008, which upto the F.Y. 2006-07 was charged to the Profit & Loss account. He submitted that the ld.CIT(A) further failed to understand that by making addition of the closing stock for F.Y. 2006-07 (AY 2007-08) it would automatically become opening stock for F.Y. 2007-08 (AY 2008- 09) and thus revenue effect would be NIL. He submitted that the ld.CIT(A) has grossly erred in rejecting the book result. He submitted that the ld.CIT(A) has failed to appreciate that accounts of the assessee are audited by internal auditors, statutory auditors, tax auditors and even C&AG of India. He submitted that the ld.CIT(A) has also failed to appreciate that the ld.A.O. has accepted the book results. He submitted that it was submitted before the ld.CIT(A) that F.Y.2006-07 (AY 2007- 08) was the first major year of operation of the company. It was brought to the notice of the ld.CIT(A) that for the F.Y. 2006-07 (AY 2007-08) the assessee in its books of accounts had charged to revenue and, therefore, for that year there was no closing stock of Natural Gas as per books. However, w.e.f. F.Y. 2007-08 (AY 2008-09) the assessee changed it....
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....unt even if there arises no taxable income. Accordingly, the addition of Rs.6,39,93,408/- made by the AO is upheld. As regards the alternate ground regarding allowing the closing stock as opening stock next year, it may be mentioned that issue under consideration is determination of income of A.Y. 2007-08 as per correct closing stock for A.Y. 2007-08 which has been decided. As far as issue regarding the determination of effect on opening stock and income of A.Y. 2008-09, appellant may make appropriate application before the A.O. who will decide the issue as per law. Therefore, the alternate ground is rejected." 5.1. We find that the ld.CIT(A) ought not to have rejected the book results as the books of the assessee are subjected to audit by various departments. Therefore, the action of the ld.CIT(A) rejecting the book of accounts is set aside, however we do not find any infirmity in the order of the ld.CIT(A) in rejecting the alternate claim of the assessee that the closing stock for the AY 2007-08 be treated as opening stock of the AY 2008-09 since the ld.CIT(A) has given liberty to the assessee to approach to the AO. Thus, this ground of assessee's appeal is partly allow....
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....embur Patalganga Pipelines Ltd.(supra) is not applicable. 10. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. Since the Revenue has raised additional ground challenging the action of the ld.CIT(A) in accepting the change of terminology from ROU to ROW by the assessee without obtaining any supporting evidences or that due process has been followed before making such a change, as the terms have significantly different meaning, the ld.CIT-DR has contended that no Remand Report was sought from the AO before making such change. The ld.CIT(A) has decided this issue vide para-3.3 of his order, by observing as under:- "3.3. I have considered the assessment order as well as the submission made by the assessee. It is seen that basically the AO has held that right of Way (ROW) expenses paid to various authorities for laying, crossing permissions, internal road, boring permission, dams and bridge crossing permission, railway and river crossing permission etc. for PNG network for pipe laying charges are not allowable because basic underlying asset is land which is taken for perpetual ownership which does n....
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....9 of Rs.2,73,52,611/- and letter of Secon Private Ltd. dated 10/04/2007 alongwith land compensation award No.01/Nadiad - CNG PL/2007of Rs.18,18,090/- (Appendix A) in support of its contention on this issue. The objection of the Revenue is that the ld.CIT(A) has not given any opportunity to the AO. 10.2. After considering the totality of the facts and in view of the fact that the assessee has placed on record certain documents (to various authorities cited above) which were not before the AO, the order of the ld.CIT(A) is set aside and the issue is remitted back to the file of AO for decision afresh. Therefore, this ground of Revenue's appeal is allowed for statistical purposes only. 11. In the result, the appeal of the Revenue for AY 2007-08 is allowed but for statistical purposes. 12. Now, we take up the Assessee's appeal in ITA No.1390/Ahd/2012 and Revenue's appeal in ITA No.1300/Ahd/2012 for AY 2008-09. The following grounds have been raised by the respective parties:- (A) Assessee' appeal (AY 2008-09) : GROUNDS ITEM NO. I: ADDITION OF CLOSING STOCK OF RS. 56,82,092/- ON ARBITRARY BASIS IN RESPECT OF TRADING OF NATURAL GAS THROUGH PIPELINES - PNG ....
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.... Kcals etc) While the sale is done in terms of Volume (SCM), hence both the figures may not be comparable. Sale in value of CNG is net of discounts and excise duty." 1.4 The learned CIT(A) has failed to understand the fact that by confirming the addition of the Closing stock for F.Y. 07-08 {A.Y 08-09) the closing stock will automatically become the opening stock of the next year for F.Y. 08-09 (A.Y. 09-10) and the revenue loss will be Nil which is in line with the following judgments a. Chattar Extractions Pvt. Ltd. Vs. ITO (2004) 85 TTJ (Asr)(TM) 405 : (2004) 91 ITD 385 (Asr)(TM) b. West Coast Paper Mills Ltd. Vs. ACIT (2006) 105 TTJ (Mumbai) 344 : (2006) 106 ITD 19 (Mumbai), c. Cyanamid Agro Ltd. Vs. Addl. CIT (2009) 121 TTJ (Mumbai) 606 : (2009) The learned CIT(A) has grossly erred in rejecting the book results. He has failed to understand that accounts of the appellant are audited by internal auditors, statutory auditors, Tax Auditors and even CA & AG of India. ITEM No. II : DISALLOWANCE OF RS. 2.23,43.676/- TOWARDS ADDITIONAL DEPRECIATION CLAIMED @ 20% ON PLANT & MACHINERY - CNG STATIONS: 2.1 The learned CIT(A) has failed to appreciate that the learned A.O has n....
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....n who makes, fabricates or brings into existence a product or an article by physical labour or power. The other shade of meaning, which is the narrower meaning, implies transforming raw materials into a commercial commodity or a finished product which has an entity by itself, but this does not necessarily mean that the materials with which the commodity is so manufactured must lose their identity. Thus, both the words 'manufacture and produce' apply to the bringing into existence of something which is different from its components...." (p. 325) From the above considering the narrower meaning, it means that the words manufacture ^ and produce apply to bringing in to existence of something which is different from its components. Hence process of compression of the natural gas is manufacture as it is required for its use and therefore the appellant is eligible for additional depreciation u/s. 32 (iia) of the Income tax Act, 1961. 2.4 The learned CIT (A) has also grossly erred on the fact of the case and in the law by stating that the following decisions are squarely applicable to the appellant, i.e. the use of compressed gas (which again is decompressed) is essentially t....
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....e of marketing it as Compressed Natural Gas (CNG), for use as a fuel or for any other purpose, shall amount to "manufacture". The Central Excise Act, 1944 - Section 2 (f) defines manufacture which includes any process Section 2(f)(ii) - which is specified in relation to any goods in the section or chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture. Central Excise Tariff Act, 1985 Chapter 27 Note No. 5 - Reproduced hereunder. 5. In relation to natural gas falling under heading 2711, the process of compression of natural gas (even if it does not involve liquefaction), for the purpose of marketing it as Compressed Natural Gas (CNG), for use as a fuel or for any other purpose, shall amount to "manufacture". The appellant humbly draws the attention to the decision of CIT Vs. VTM Ltd. Wherein it was held as under. Depreciation--Additional depreciation under s. 32(1)(iia)--New plant or machinery-- Assesses engaged in manufacture of textile goods having installed new wind mill was entitled to additional depreciation--It was not necessary for claiming additional depreciation that new machinery or plant s....
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.... in the law by upholding the decision of the learned A.O by confirming the disallowance of capitalized interest on share application money Rs.3,30,46,723/-. 4.3 The learned CIT(A) has grossly erred in law and on facts in stating that "the shares for which the appellant has borrowed money are its investments and not business. The interest paid for investments is not an allowable expenses u/s. 36(iii) of the IT Act. Neither are the shares depreciable assets. Therefore, the appellant cannot be allowed to capitalize the interest and then claim depreciation on the capitalized interest". The learned CIT (A) has failed to appreciate that appellant has not borrowed any money for investment in shares. In fact, the appellant has received share application money for which allotment is pending and appellant has paid interest on the same. The learned CIT(A) has failed to appreciate that investment will be in the hands of the person from whom amount of share application money is received. 4.4 The learned CIT (A) has grossly erred on the fact of the case by disallowing the interest on share application money of Rs. 95,88,000/- which was capitalized and only depreciation of Rs. 14,38,200/- w....
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.... on which such asset was first put to use shall not allowed as deduction hence the appellant has rightly capitalized the interest on share application money and rightly claim the depreciation on such capitalized interest.* 4.9 The appellant humbly draws the attention of your honour to the decision of Hon'ble ITAT Bangalore in the case of ACIT Vs. GMR Industries Ltd. Where in it was held that Share application money is debt for the assessee company till the time allotment is done and hence interest on share application money is allowable expenditure under section 36 (1) (iii) of the act. 4.10 Without prejudice to the above appellant humbly submits that disallowance of interest on share application money Rs. 3,30,46,723/- as made by the learned CIT (A) may kindly be deleted and if the disallowance is confirmed then the disallowance be restricted to Rs. 14,38,200/- i.e amount "of depreciation claimed on the capitalization of interest of Rs. 95,88,000/- on share application money. ITEM NO&V: ADDITION ON ACCOUNT OF LIQUIDATED DAMAGES OF Rs. 2,25,88,566/-: 5.1 The (earned CIT(A) has grossly erred on facts and circumstances of the case and in law in upholding the decision ....
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....nd the same may kindly be deleted. 6.3 That the interest U/s 234B & 234D on the facts and circumstances is not automatic or consequential. ITEM NO. VII: INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(c) OF THE ACT: 7. The Learned CIT(A) Gandhinagar has grossly erred in law and on facts in not deciding the issue by stating that the "initiation of penalty proceedings u/s. 271(1)(c) being premature Is not entertained." The learned CIT(A) ought to have appreciated that the appellant has not furnished any inaccurate particulars either with the return of income or during assessment proceedings and also appellant has not concealed any particulars of income. The Learned CIT(A) ought to have appreciated that the additions are made on account of difference of opinion in interpretation of the provisions of law and therefore question of initiation of penalty proceeding does not arise. Vlll. The appellant reserves its right to add, amend, alter, substitute or modify all or any of the grounds stated hereinabove as the facts and circumstances of the case may justify. (B) Revenue's appeal (AY 2008-09) : 1. The learned CIT(Appeals) has erred in law and on facts in deleting th....
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....on depreciation claimed 2,23,43,676 depreciation claimed @ 20% on Plant & Machinery - CNG Stations Disallowance of prior period expenditure 15,45,925 Disallowance of interest on share application money 3,30,46,723 Addition on account of liquidated damages 2,25,88,566" The assessee further carried the matter in appeal before the ld.CIT(A), who after considering the submissions partly allowed the appeal, thereby ld.CIT(A) deleted the disallowance of claim of depreciation on intangible right of way, confirmed the addition amounting to Rs.56,82,092/- made on account of closing stock, disallowance of additional depreciation, disallowance of prior period expenses, disallowance of interest on share application money and disallowance of liquidated damages. Against this, both the Assessee and the Revenue has filed appeal before this Tribunal. 12.2. Assessee's appeal (ITA No.1390/Ahd/2012) : The first grounds is against the addition of closing stock of Rs.56,82,092/-. The ld.Sr.counsel for the assessee submitted that the ld.CIT(A) failed to appreciate the fact that the AO had never asked the assessee to furnish the quantitative details of....
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....n on the facts: a) As far as the stock of natural gas as line pack is concerned, both the appellant and the AO have considered it as part of assessee's stock. The value of the stock of CNG of 6481513 SCM valued at Rs.6,39,93,408/- belongs to the appellant and as per appellant, it was not taken in stock for AY 2007-08 but has now being included as per the company's decision. b) The stock as per a) above was there as per the AO and now admitted by the appellant on 31/3/2007. There is no dispute now on this issue. c) The AO as discussed earlier has calculated the increase in stock during the year i.e. after 31/03/2007 by converting the purchases and sales into same unit i.e. quantity of equivalent PNG. The sale of CNG has been converted into PNG by taking the base of last year's production of CNG from PNG by the assessee itself. The appellant is maintaining the books as if there is no difference (neither increase not decrease) in stock quantity during the year; irrespective of the quantities purchased and sold. The method of accounting tried to be adopted by the appellant without accounting for changes in stock would always give wrong picture of profit; and thi....
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....base of last year's production of CNG from PNG by the assessee itself. The submission of the assessee is on the factual aspects needs to be verified by the Assessing Officer. 14. In view of the submission, we are of the considered view that this issue requires to be examined and verified by the AO and to be decided afresh. Accordingly, we hereby set aside the order of the ld.CIT(A) on this issue and restore this issue back to the file of AO for fresh decision taking into account all the submissions of the assessee. Needless to say that the AO shall afford reasonable opportunity of hearing to the assessee. The assessee is directed to furnish all quantitative details related to its claim to the AO. Thus, this ground of assessee's appeal is allowed but for statistical purposes. 15. Ground No.2 is against disallowance of Rs.2,23,43,676/- towards additional depreciation claimed @ 20% on plant & machinery. The ld.Sr.counsel for the assessee submitted that the ld.CIT(A) was not justified in confirming the disallowance made by the AO. He submitted that as per Central Excise Tariff Act, 1985 - Chapter 27, Note No.5 in relation to natural gas falling under heading 2711, the pro....
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....essed Natural Gas (CNG)) for use as a fuel or for any other purpose, shall amount to "manufacture". He submitted that in view of the binding precedent the claim of assessee deserves to be allowed. 16. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that this issue is to be examined whether the assessee is entitled for additional depreciation claimed @ 20% on plant & machinery. Both the AO and ld.CIT(A) have rejected the claim on the basis that compression of conversion of PNG to CNG does not tantamount to manufacture, therefore, the assessee is not entitled for the additional depreciation claimed as there is only change of form but basic ingredients remain same. 16.1. The Hon'ble Apex Court in the case of rendered in the case of Income Tax Officer vs. Arihant Tiles & Marbles (P) Ltd. reported at (2010) 320 ITR 79 has held as under:- "21. Before concluding, we would like to make one observation. If the contention of the Department is to be accepted, namely that the activity undertaken by the respondents herein is not a manufacture, then, it would have serious revenue consequences....
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....ready rendered and the rates were known to the appellant as per the terms of agreement with the service providers, etc. The expenses accrued in those years and according to mercantile system of accounting these cannot be allowed in the year just because these have been accounted for by the appellant in this year. The only explanation given by the assessee is that these expenses are crystallized during the year under consideration. The assessee has relied on the following decisions:- Sl.No(s) In the case of.... Reported at.... 1. CIT vs. Jagatjit Industries Ltd. 194 taxman 158 (Del.) 2. Sterlite Industries (India) Ltd. (2006) 102 TTJ vs. Addl.CIT (Mumbai) 53. 18.1. The Hon'ble Delhi High Court in the case of CIT vs. Jagatjit Industries Ltd.(supra) has held that the assessee has been debiting the expenditure spilled over to the subsequent years and the AO had been allowing the same. The said accounting practice has been consistently followed by the assessee and accepted by the Department. If a particular accounting system has been followed and accepted and there is no acceptable reason to differ with the same, the doctrine of consistency wo....
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..... He submitted that the ld.CIT(A) failed to appreciate that the appellant has not borrowed any money for investment in shares. In fact, the appellant has received share application money for which allotment is pending and appellant has paid interest on the same. He submitted that the ld.CIT(A) has failed to appreciate that investment will be in the hands of the person from whom amount of share application money is received. He further submitted that the ld.CIT(A) has grossly erred by disallowing the interest on share application money of Rs.95,88,000/- which was capitalized and only depreciation of rs.14,38,200/- was claimed. The ld.CIT(A) has failed to appreciate that the appellant has not claimed Rs.95,88,000/- as expenses but appellant has claimed only Rs.14,38,200/- by way of depreciation on capitalization of interest. The ld.Sr.counsel for the assessee submitted that the ld.CIT(A) has erred in disallowing the interest on share application money of Rs.2,34,58,723/- which was not capitalized and no depreciation was claimed. The ld.CIT(A) has failed to appreciate that appellant has not claimed Rs.2,34,58,723/- as expenses but the same was treated as capitalized work-in-progress i....
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....im of expenses/depreciation as per the above directions, while giving the effect to this order. The ground are decided accordingly." 21. The undisputed facts of this case as emerged from the record before this Tribunal is that the share application money of Rs.3,30,46,723/- which was used in purchases of asset. The interest of Rs.2,95,88,000/- was capitalized by adding the sum to the cost of the asset on which depreciation of Rs.14,38,200/- was claimed. The lower authorities were not justified in disallowing the claim of depreciation of Rs.14,38,200/- as the interest expenses incurred became the cost of the asset acquired and, hence, eligible for depreciation thereon. Our this view finds support from the decision of the Hon'ble Coordinate Bench Bangalore rendered in the case of GMR Industries Ltd.(supra). 21.1. Further, the balance interest of Rs.2,34,58,723/- was not claimed as deduction by the assessee as submitted by the ld.AR during the course of hearing and question of disallowing the same does not arise in as much as the same was not controverted by the ld.DR. We, therefore, set aside the order of the lower authorities and delete the addition of Rs.2,34,58,723/-. In....
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....ensation payable to the assessee-company were two different and distinct things. Compensation was paid to set off or reduce the loss which the assessee suffered as a result of delay in supply of machinery. It has nothing to do with the cost of machinery. Though adjusted against the cost of machinery, it was none the less compensation. The actual cost of machinery could not be reduced by Rs.5,72,216 and depreciation and development rebate had to be allowed on the entire cost of machinery as per the agreement." 23.1. The Hon'ble High Court of Calcutta in the case of CIT vs. Rohtas Industries Ltd. (1981) 130 ITR 292 (Cal.) has held as under:- "Held, that no part of the actual cost of the machinery had been met by the German firm. The payment was compensation for low output because the machinery was defective. Furthermore, there was no reduction of the cost of the machinery already supplied and the amount which the assessee had received on account of low output had been treated as a revenue receipt and taxed as such. The amount of rebate recoverable from the foreign suppliers was not deductive in determining the actual cost of the machinery under s.43(1)." 23.2. However, the ....
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....nery, the assessee was to be compensated at the rate of 0.5 per cent of the price of the respective portion of the machinery for delay of each month by way of liquidated damages by the supplier, without proof of actual loss. However, the total amount of damages was not to exceed 5 percent of the total price of the plant and machinery. The supplier defaulted and failed to supply the plant and machinery on the scheduled time and, therefore, as per the terms of contract, the assessee received an amount of Rs.8,50,000/- from the supplier by way of liquidated damages. During the course of assessment proceedings for the relevant assessment year, a question arose whether the said amount received by the assessee as damages was a capital or a revenue receipt. The AO negatived the claim of the assessee that the said amount should be treated as a capital receipt. Accordingly, he included the said amount in the total income of the assessee. Aggrieved, the assessee filed an appeal before the CIT(A), but without any success. The assessee carried the matter further in appeal to the Tribunal. Relying on the ratio of the decisions of this Court in CIT vs. Rai Bahadur Jairam Valji & Ors. (1959) 35 I....
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....ut by the ld.CIT-DR, following our decision passed in ITA No.2958/Ahd/2010 (supra), therefore this issue is also restored back to the file of AO. Thus, this ground of Revenue's appeal is allowed for statistical purposes only. 28. Ground No.2 is against deletion of addition made by the AO in respect of depreciation (reduced cost) amounting to Rs.26,48,101/-. 28.1. The ld.CIT-DR supported the order of the AO, whereas, ld.Sr.counsel for the assessee supported the order of the ld.CIT(A). 28.2. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. Looking to the facts and circumstances of the case, we do not find any infirmity in the order of the ld.CIT(A), the same is hereby upheld. Therefore, this ground of Revenue's appeal is dismissed. 29. Grounds No.3 & 4 are general in nature require no independent adjudication. 30. In the result, Revenue's appeal for AY 2008-09 is partly allowed but for statistical purposes. 31. Now we take up the assessee's appeal for AY 2009-10, i.e. ITA No.239/Ahd/2013 for AY 2009-10. As per chart submitted by the ld.Sr.counsel for the assessee, the ....
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....he Act which is consequential in nature, same is held accordingly. 31.3. Ground No.9 is against initiation of penalty proceedings u/s.271(1)(c) of the Act which is pre-mature and, hence, the same is dismissed as such. 32. In the result, the Assessee's appeal for AY 2009-10 is partly allowed for statistical purposes only. 33. Lastly, we take up the Revenue's appeal, i.e. ITA No.678/Ahd/2013 for AY 20-09-10. The Revenue has raised the following grounds of appeal:- 1. The learned CIT(Appeals) has erred in law and on facts in deleting the addition made by the AO on account of disallowance of depreciation on Right of Way amounting to Rs.3,43,18,214/-. 2. On the facts and circumstances of the case, the Ld.CIT(A) ought to have upheld the order of the Assessing Officer. It is therefore prayed that the order of the learned CIT(Appeals) may be set aside and that of the A.O. be restored to the above extent. 33.1. The issue is identical as raised in Revenue's appeal for AY 2007- 08 in ITA No.2958/Ahd/2010(supra). Since the facts are identical to the facts of Revenue's appeal for AY 2007-08(supra), for the same reasoning, the Revenue's appeal for AY 2009-10 is....