BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND
SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER

I.T.A.No.323/Mds/2015
Assessment year : 2011-12
The Dy. Commissioner of Income-tax (Appellant) vs M/s Roots Multiclean Ltd RKG Industrial Estate (Respondent)
Date of Hearing : 04-08-2015
Date of Pronouncement : 07-08-2015

ORDER

PER N.R.S.GANESAN, JUDICIAL MEMBER

This appeal of the Revenue is directed against the order of the Commissioner of Income-tax (Appeals)-1, Coimbatore, dated 25.11.2014 and pertains to assessment year 2011-12.

2. Notice of hearing was served on the assessee by RPAD. The Registry has placed on record the postal acknowledgement as a proof of service of notice on the assessee. Even though the assessee received the notice of hearing, no one appeared for the assessee when the appeal was taken up for hearing. Therefore, we heard Shri A.V. Sreekanth, Ld. Departmental Representative and proceeded to dispose of the appeal on merit.

3. The Assessing Officer disallowed the claim of depreciation on the windmill on the ground that the Revenue has filed an appeal before the Apex Court against the judgment of the Madras High Court in Velayudhaswamy Spinning Mills Ltd. vs ACIT, 231 CTR 368. The Assessing Officer admits in the assessment order that the issue before him is similar to one that was decided by the Madras High Court. Nevertheless, merely because a Special Leave Petition was pending before the Apex Court, he disallowed the claim of the assessee. However, on appeal by the assessee, by following the judgment of the Madras High Court in Velayudhaswamy Spinning Mills Ltd. (supra), the CIT(A) allowed the claim of the assessee.

4. Having heard the ld. DR, we do not find any infirmity in the order of the lower authority in following the binding judgment of the Jurisdictional High Court. A mere pendency of SLP before the Apex Court cannot be a reason for not following the judgment of the Jurisdictional High Court. It is not the case of the Revenue that the operation of the judgment of the Madras High Court was stayed by the Apex Court. In those circumstances, this Tribunal do not find any infirmity in the order of the lower authority. Accordingly, the same is confirmed.

5. In the result, the appeal of the Revenue stands dismissed

Order pronounced in the open court on 07th of August, 2015, at Chennai.

Sd/-                                                                 Sd/-
(CHANDRA POOJARI)                     (N.R.S. GANESAN)
ACCOUNTANT MEMBER                JUDICIAL MEMBER

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