TaxTMI 
TaxTMI 
TaxTMI 
2015 (12) TMI 1503
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.... of Rs. 4,29,676/-." 2. The first ground of the revenue appeal is against deleting the addition of Rs. 32,74,147/- on account of excess depreciation claimed by the assessee on wind mill plant. The assessee is running hotels, restaurants, bar and shopping complex. It filed return of income on 27/09/2009 declaring total income of Rs. 50,78,815/-. During the year under consideration, the assessee has installed wind mill at village Saadiya, district Jaisalmer, Rajasthan of Rs. 3,66,33,382/-. The ld Assessing Officer called the details from the assessee and verified the depreciation claimed by it. The assessee has claimed depreciation @ 80% on Rs. 3,66,33,282/-. The ld Assessing Officer observed that ancillary items connected with installation of the wind mill. As per Act, 80% depreciation is provided on energy saving devices and does not include any other accessories & expenditure connected with the system. The ancillary item should have been provided depreciation either under the head building @ 10% or as plant and machinery @ 15%. The ld Assessing Officer gave reasonable opportunity of being head, which was replied vide letter dated 02/11/2011, which has been reproduced on page No.....
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.... the Assessing Officer, which is as under:- Item Amount initially incurred during F.Y. 2007-08 Depreciation allowed in A.Y. 2008-09 WDV as on 01/4/2008 after considering assessment order U/s 143(3) for A.Y. 2008- 09 Allowable Rate of depreciation Depreciation allowed for A.Y. 2009-10 (under consideration) Wind Mill Plant 27420696 10968278 16452418 80% 13161934 Building 2661554 133077 2528477 10% 252848 Plant & Machinery 6451132 483834 5967298 15% 895095 Lease and Hold Land 100000 Nil Nil Nil Nil Total allowable depreciation 14309876 Depreciation claimed by the assessee 17584023 Difference to be added 3274147 Finally he disallowed depreciation of Rs. 32,74,147 and the same was added in the income of the assessee. 3. Being aggrieved by the order of the learned Assessing Officer, the assessee carried the matter before the learned CIT(A), who had allowed the appeal by observing as under:- "4. I have considered submissions of the appellant. It is noticed that the A.O. disallowed the claim of depreciation on the ground that the depreciation on the building and plant and machinery meant for wind mill was not entitled t....
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....n identical facts. The operative portion of the order is reproduced as under:- "6. We have heard the rival contentions of both the parties and perused the material on record. The various High Courts as well as Coordinate Bench of ITAT, Jaipur in case of DCIT Vs. Vippy Solvex Products Ltd. and DCIT Vs. M/s Chirag Associates (P) Ltd. respectively, held that foundation of platform, erection, installation of plant and machinery, preparation of crane platform for wind mill and other civil work carried out for installation are internal part of wind mill, which have not independent use. Thus, we are of the considered view that the assessee is entitled for 80% of depreciation on composite wind mill project including other expenditure for put to use for wind mill. Thus, we confirm the order of learned CIT(A)." 6. The second ground of revenue's appeal is against disallowance of Rs. 4,82,093/- U/s 40(a)(ia) of the Act. The ld Assessing Officer observed that the assessee had debited credit card commission of Rs. 8,67,719/-. The assessee has not deducted TDS on payment of credit card service charges. Each charges appeared to be commission in respect of credit card. Section 40(a)(ia) of the ....
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....ee. Thus the issue is covered in favour of assessee from said appeal order. The ld CIT(A) has decided the appeal by following ITAT, Jaipur Bench judgment in case of Gem Paradise Vs. ACIT (ITA No. 746/JP/2011 decided on 02/02/2012) in which it was held that assessee sold its goods through credit card and on presentation of bill issued against credit card the bank makes payment to assessee after deducting agreed fees as per terms and conditions in case of credit card. This is no a commission payment but a fees deducted by the bank. There is no such relation between the bank and the shop keeper which establishes the relationship of a principal and commission agent. Therefore, provision of section 194H are not attracted in this type of transaction and no TDS is to be deducted therefrom. The issue thus is covered in favour of assessee from the said judgment of ITAT, Jaipur Bench as well as from appeal order of ITAT in case of assessee for A.Y. 2008-09. The judgments of other Benches of ITAT also supports this legal position which are (i) Tata Tele services Vs. DCIT 140 ITD 451 (Bang.) (ii) DCIT Vs Vah Magna Retail P Ltd. ITA No. 905/Hyd 2011 (Hyd). (iii) ACIT Vs Jet Airways Ltd....