Income Tax Appellate Tribunal - Ahmedabad
C. Dinesh &Co.,, Surat vs Department Of Income Tax on 3 January, 2012
-1-
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD BENCH "B"
BEFORE SHRI D K TYAGI - JM
& SHRI A MOHAN ALANKAMONY - AM
ITA no.3394/Ahd/2009
(Assessment Year:-2006-07)
The Asst. Commissioner V/s M/s C Dinesh & Co.,
of Income-tax, Central 5/897, Kalpavruksha,
Circle-3, Room No. 507, Ghiya Sheri,
Aayakar Bhavan, Majura Mahidharpura, Surat
Gate, Surat
PAN: AAAFC 0676 Q
[Appellant] [Respondent]
Revenue by :- Shri Alok Johri, CIT - DR
Assessee by:- Shri Rasesh Shah, AR
Date of Hearing:- 03-01-2012
Date of Pronouncement:- 16-02-2012
ORDER
PER D K TYAGI (JM):- This is Revenue's appeal against an order dated 16-10-2009 passed by the Learned Commissioner of Income-tax (Appeals)-II, Ahmedabad ["learned CIT(A)'] for Assessment Year 2006-07. The only ground relates to deletion of additions of Rs.2,63,83,700/- made by the AO on account of depreciation claimed by the assessee.
2 The facts of the case are that a survey action u/s 133A of the Income-tax Act, 1961 [hereinafter referred to as the 'Act'] was conducted on 21-10-2005 at the business premises of the assessee, at Kalpvruksha, Ghia Sheri, Mahidharpura, Surat.
2During the course of survey, cash of Rs.1,72,550/- and the stock of diamond valued at Rs3,67,93,222/- were found.
3 The assessee is doing business of import of rough diamonds, manufacturing and exports of polished diamonds in the year under consideration and in the earlier year also. The assessee has installed a wind mill K-411 at village Akhatwade, District : Nandurbar and generate the electricity and sell it to the Maharashtra Government and earning the income. During the year under consideration, the assessee has claimed depreciation of Rs.2,28,38,678/- [i.e., @ 80% p.a. on Rs.5,70,96,694/- & claimed depreciation @ 40% for half year] on above wind mill project showing the wind mill was commissioned on 31-03-2006 at the fag end of the year. To verify the genuineness of the claim of the assessee, the AO issued a notice u/s 133(6) on 28-05-2008 to the Superintending Engineer of MSEDCL, O&M Circle, Dhule regarding the commencement of the wind mill belonging to C Dinesh & Co. Again, on 05-06-2008, another letter was issued to the above Engineers calling the details regarding the name and address of the representative of the Engineer in whose presence the wind electrical generator was commissioned on 31-03-2006.
4 The information called for was received by the AO on 16- 06-2008 from Executive Engineer of MSEDL, Dhule. In the course of assessment proceedings, the AO required the assessee to file various evidences in support of assessee's claim of depreciation on power wind mill. The assessee submitted the evidences in support of the events. However, the AO recorded the 3 statements of S K Patil, Executive Engineer and Namdev T Chaudhary, Deputy Exe. Engineer, who at the relevant time working as Executive Engineer at Nandurbar. The AO was not satisfied with the assessee's claim of depreciation and he disallowed the claim of depreciation on wind mill as per his findings given at page nos.2 to 11 of the assessment order mainly for the following reasons:-
"i) It is evident from answer to Q.No.3 given by Mr. S.K.Patil, then executive engineer of MSEDCL, Nandurbar that he was not at place Akhatwade, where the wind mill is actually installed but he was in sub-station, Jamade. Therefore, he was unable to give information regarding the commission of wind mill K-411 and generation of electricity on 31/03/2006.
ii) It is evident on the wind mill turbine delivery wings issued on 29.3.2006 that the work was incomplete and.
iii) The windmill stated to be commissioned on 31/03/2006 at 12.59 p.m. and generated only 43 kwh (unit) and imported only 28 units for 11 hours from commissioned the same which is not proved, reliable and genuine.
iv) Depreciation is allowed only when machinery put to use and not for kept ready for use.
v) The meter reading Assistant Engineer already confessed in his statement recorded u/s.131 of the I.T.Act, 1961 that he has not taken individual meter reading of K/411 wind mill situated at Village Akhatwade, Taluka Nandurbar which evident that no one was present at the sight on 31/03/2006. The Executive Engineer and the Assistant Engineer were at sub station, Jamade where the feeder 220/33 kv installed and they have taken the reading of feeder only, which contains the flow of electricity generation of many wind mills.
vi) Even on the percentage wise calculation as above also proves that if electricity generation is of the above date and above time, the 4 generation must be high which evident that the generation of electricity shown by the assessee was given by Suzlon Co. to get the benefit of depreciation claim u/s.32 of the l.T.Act,1961."
5 The assessee went in appeal before the learned CIT(A). The assessee made the following submissions:-
a) Permission from Director, MSEDCL (Maharastra State Electricity Distribution Co.) for Grid Connectivity of Wind turbines has been received by M/S Suzlon Energy Ltd. through letter dated 22nd August 2005. Through this letter, the consent was given to M/S Suzlon Energy Ltd. to connect wind turbines for valued wind project developers of M/S Suzlon Energy Limited.
b) On 14/11/2005, the work order for erection & installation of the windmill was given to Suzlon Infrastructure Limited.
c) Assessee applied to Maharasatra Energy Development Agency for Infrastructure clearance for setting up 1.25 MW 'Wind Power project vide application dated 15/11/2005.
d) Infrastructure clearance for setting up of wind power project has been received from Maharashtra Energy Development Agency vide letter dated 20th December 2005.
e) Approval of plan of Installation of wind turbine generator has been received from Superintending Engineer, Aurangabad, Govt. of Maharashtra through letter dated 22nd March 2006.
f) Test report has been obtained by assessee from Licensed Govt.
Contractors, Aditya Engineers vide letter dated 25th March 2006. This certificate was issued from electric contractor for completion of electric work as per the requirement of electric line.
g) Assessee started receiving the parts of wind mill beginning from 7/3/2006 and all parts except "Blade AE33" were received till 25/3/2006. The said parts were received only on 29/3/2006.
h) Assessee received letter dated 28/3/2006 from Maharastra Energy Development Agency giving Clearance for 5 commissioning the project. In this letter, it was stated that assessee shall inform the commissioning schedule for project so that MEDA could depute their representative for witnessing commissioning of wind power project.
i) In meanwhile, civil electrical works were also completed by M/s. Suzlon Infrastructure Ltd. commissioning erection and installation was also completed on 31.03.06. Accordingly assessee received the bill dated 30.03.06 for civil woks and bill dated 31.03.06 for electrical, erection, installation and commission works from M/s. Suzlon Infrastructure Ltd.
j) Accordingly, assessee informed the commissioning schedule to MEDA proposing commissioning to be taken place on 31/3/2006 after getting wind mill .completely installed.
k) Confirmation of MSEDCL has been received by assessee regarding commission of the wind mill on 31/03/2006 from Superintending Engineer, O & M Circle, Dhule. He confirmed commissioning of plant in presence of representative from his office, representative of Executive Engineer, O & M Division, Nandurbar, representative of Assistant Engineer, O & M Sub Division, Nandurbar, representative of Meda and representative of customer.
l) Assessee has generated the electricity of 43 units and after considering loss in testing of 14 units and consumption of 1 unit, 28 units of electricity have been imported by MSEDCL on 31.03.3006 for which assessee has generated invoice of Rs. 98/- against which cheque dated 26th June 2006 has been received by assessee from MSEDCL.
m) MSEDCL has confirmed net import of 28 units during the period of 28th February 2006 to 31st March 2006 in generation report containing signature of Account Officer, Executive Engineer and Superintending Engineer, MSEDCL, O & M Circle, Dhule. In this generation report the period for generation has been stated from 28.02.06 to 31.03.06.
n) In the generation report issued by MSEDCL for the month of April the commissioning date has been mentioned as 31.03.06.
6The period for generation has been mentioned from 31.03.06 to 30.04.06.
The appellant placed reliance on the decision of Honourable Gujarat High Court in case of ACIT v. Ashima Syntex Ltd. [251 ITR 133] and submitted that the depreciation should be allowed.
6 After considering the aforesaid submissions made by the assessee, the learned CIT(A) deleted the disallowance of depreciation, with the following observations:-
"4. I have considered the facts and submissions made by assessee. I agree with the appellant's view for the following reasons:
a) Assessee has put up all the evidence in support of claim of depreciation on power wind mill project. Although no show cause notice was issued by the assessing officer for his proposal to disallow the depreciation.
b) The summons were issued only to two persons whose representative attended during commissioning of plant. No inquiry was made from any other person who issued various letters in connection with Infrastructure Clearance and Clearance for Commissioning of the plant or representative of the persons who were actually present at the time of installation.
c) The meter is attached with Wind Mill for reading of output and M/S Suzlon Energy Limited .takes reading of Meter of all wind mills and the total of reading of all wind mills are tallied with reading of meter at sub station. It was stated by Shri Namdev T Chaudhary in this statement that the break-up of units generated by individual turbines are given by representative of the Developer/Suzlon to the MSEDCL and the individual wind mill turbine readings are not taken by him or MSEDCL. On the basis of data from SUZLON, the MSEDCL is issuing the bills. This aspect of the matter was not confronted to Suzlon Energy Ltd.
otherwise in absence of any enquiry from Suzlon Energy Ltd., the facts stated by assessee also have to be accepted by assessing officer.
7d) MSEDCL has confirmed net import of 28 units during the period of 28th February 2006 to 31st March 2006 in generation report. This document contains signature of Account Officer, Executive Engineer and Superintending Engineer, MSEDCL, O & M Circle, Dhule.
e) In the generation report of MSEDCL for the month of April, 06 also commission date has been stated as 31.03.2006 only. Meter reading is used to be done at the sunset time on the last day of the month. Thus first bill was from the period 28.02.2006 to 31.03.2006 and the second bill was from 31.03.2006 to 30.04.2006.
f) It has been mentioned at Page No. 10 of the assessment order that transformer is commissioned on 31/3/2006 at 12.59 p.m. However, assessee contended that no such report was given by assessee. The assessee is not sure about time when plant was commissioned for commercial production on 31/3/2006.
g) Assessing Officer has made comparison of units generated on 31.03.2006 and per hour unit generated during the next month on page 10, para 2 & 3. While making comparison, assessing officer has not considered the fact that the day on which testing has been done and commercial production has been started should not be compared with any other normal day. Further, meter reading was used to be done at the sunset time on the last day of the month and not at 24:00 hours as stated by assessing officer.
h) In reply to information called by ACIT u/s 133(6), M/s. Suzlon Infrastructure Ltd. has submitted their reply confirming the installation in time.
i) In the statement recorded u/s 131, Shri Subhash Patil has only stated that he was not present at the time of installation of wind mill. He did not deny the actual installation and commissioning of wind mill. Assessee never stated that Shri Subhash Patil was present at the time of installation and commissioning of the plant. Assessee only produced the certificate from Superintendent Engineer, MSEDCL confirming the presence of representative of various authorities including the representative 8 of Shri Subhash Patil. On the contrary the presence of representative of Shri Subhash Patil confirms his statement and his nonavailability at the site on 31.03.06.
j) In the statement recorded u/s 131, Shri Namdeo Chaudhari stated that he was not present at the time of installation of wind mill. He did not deny the actual installation and commissioningofwind mill. Assessee never stated that Shri Namdeo Chaudhari was present at the time of installation and commission of the plant. Assessee produced the certificate from Superintendent Engineer, MSEDCL confirming the presence of representative of various authorities including the representative of Shri Namdeo Chaudhari at the time of installation. He also stated that formalities like payment, Test Report, submission of undertaking was dealt by Circle Office i.e. Supdt. Engineer, O&M Circle, Dhule. The Supdt. Engineer, O&M Circle, Dhule was not summoned. Regarding the installation of blade he stated that it would depend upon company and its capacity. He did not deny the installation of blade before 31.03.06. he did not deny the capacity of assessee or Suzlon Infrastructure Ltd. to install the blade before 31.03.06. Parts of "Blade A33" were received on 29.03.06 leaving 3 days of time to get them installed.
k) The Assessing Officer has relied on the decision of DC IT Vs. Yellamma Dassappa Hospital 290 ITR 353 (Kar). However in that case it has been found by Honourable Court that machinery was ready to use but assessee has not used machinery at all during the relevant year. Facts are different in assessee's case. Assessee has claimed that wind mill was commissioned during the year under consideration. So this case law will not be applicable in assessee's case.
l) Even the trial run of machinery amounts to user of machinery as held by Honourable Gujarat High Court in case of ACIT v. Ashima Syntex Ltd. cited supra.
Accordingly, the disallowance of depreciation made by the Assessing Officer is deleted."
97 Aggrieved by the order of the learned CIT(A), the Revenue has come in appeal before us. The learned DR supported the order of the AO and referred to the grounds of appeal, which are as under:-
2. The Ld. CIT(A) has erred in law and on facts in holding that no enquiry was made from any other persons who issued various letters in connection with the infrastructure clearance for commissioning of the plant or representative of the persons who were actually present at the time of installation other than the Asst. Engineer and Executive Engineer of MSDECL, ignoring that only field level officers like the Asst. Engineer and Executive Engineer, the two important functionaries of MSEDCL, are right persons to confirm the installation and commissioning of the wind mill rather than officials who give various clearance without appreciating the ground realities.
3. The Ld. CIT(A) has erred in law and on facts in holding that the assessee has got the capacity to install the blade with the support of Suzlon Infrastructure Ltd. before 31.03.2006, since part of the blades were delivered on 29.03.2006, leaving only three days of time to get them installed ignoring that assessee's motive was to create facts on paper in such way so as to enable him to claim depreciation for F.Y.2005-06, as is evident from the letter of the Superintending Engineer dated 27.03.2006 to Executive Engineer stating that M/S. Dinesh & Co. has completed all the formalities such as payment, test reports, submission of undertaking, PPA, prior to the delivery of wind mill turbine blades on 29.03.2006.
4. The Ld. CIT(A) has erred in law and on facts in holding that the A.O. has not confronted with the Suzlon Energy Ltd. regarding the facts stated by Shri N.T.Choudhary, Asst. Enineer about meter reading and its billing of the electricity generated by the wind mills, ignoring that Suzlon Energy Ltd. is selling its products by showing tax advantage of 80% depreciation on wind mill 10 and the representative who works for Suzlon Energy Ltd.
may not speak against the business interest of the company, leaving only option with the A.O. to enquire about the truth from the Govt. authorities.
5. The Ld. CIT(A) has erred in law and on facts in holding that MDEDCL has confirmed the date of commissioning n 31.03.2006 in its generation report which contains the signature of Accounts officers, Executive engineer and Superintending Engineer, MSDECL , O & M Circle, Dhule ignoring that the meter reading Officer, Shri N.T.Choudhary himself confirmed that he has not taken the individual meter reading and he has taken only the 33 KV feeder reading, which is the cumulative meter reading of around 20 wind mills and the separate reading for each wind mill is reported by the representative of the Suzlon Energy Ltd. leaving flexibility for adjustment by Suzlon Energy Ltd. on behalf of the assessee, among the split meter readings of wind mills without affecting the cumulative reading at the sub station.
6. The Ld. CIT(A) has erred in law and on facts in holding that MSDECL has confirmed the date of commissioning on 31.03.2006 in its generation report which contains the signature of Accounts Officers, Executive Engineer and Superintending Engineer, MSDECL, O & M Circle, Dhule ignoring that neither the Asst. Engineer and Executive Engineer of MSDECL nor any of their representative were present, on the day of commissioning of plant as alleged by the assessee, whose presence is mandatory before commissioning of such a plant in their jurisdiction, to verify the veracity of the claim of the assessee on the actual date of commissioning of the plant.
7. The Ld. CIT(A) has erred in law and on facts in holding that the decision of the DCIT vs Yellamma Dassappa Hospital 290 ITR 353 Kar is not applicable to the present case ignoring that in the instant case, the asset was not put to use nor any trial run was carried out since the installation of wind mill was not completed before 11 31.03.2006, as per the facts and evidences brought on record by the A.O.
8. The Ld. CIT(A) has erred in law and on facts in holding that the decision of the Hon'ble Gujarat High Court in the case of ACIT vs. Ashima Syntex Ltd. is applicable to the present case ignoring that in the instant case, the asset was not put to use nor any trial run was carried out before 31.03.2006, since the installation of wind mill was not completed before 31.03.2006, as per the facts and evidences brought on record by the A.O.
9. It is, therefore, prayed that, the order of the CIT (A) be set aside and that of the A.O. be restored to the above extent.
8 The learned counsel of the assessee supported the order of the learned CIT(A) and reiterated the submissions made before him.
9 We have heard both the parties and perused the facts of the case and find that the assessee is engaged in the business of import of rough diamonds, manufacturing and exports of polished diamonds. During the year under appeal, the assessee has installed a wind mill K-411 at village Akhatwade, District:
Nandurbar in the State of Maharashtra. The electricity generated through the wind mill was sold to Maharashtra State Electricity Distribution Co. Ltd. [hereinafter referred to as "MSEDCL"]. The wind mill was purchased by the assessee from M/s Suzlon Infrastructure Co. Ltd. and depreciation of Rs.2,28,38,678/- was claimed [i.e. at the rate of 80% per annum at Rs.5,70,96,694/- and claimed depreciation at 40% for half year], on wind mill project by showing that the wind mill was commissioned on 31- 03-2006. The AO, however, was not satisfied with the claim of 12 the assessee that the wind mill was commissioned on 31-03-2006 for the reasons given by him in his assessment order which we have already reproduced in para-4 of this order and disallowed the depreciation on it. In appeal, the learned CIT(A) allowed the claim of depreciation of the assessee by holding that the wind mill was commissioned on 31-03-2006. The reasons for reaching at this conclusion have already been reproduced in para-6 of this order. Thus, the only dispute before us is as to whether the AO was right in holding that the wind mill was not commissioned during the year under appeal and therefore depreciation claimed on it was not allowable to the assessee or the learned CIT(A) was right in holding that the wind mill was commissioned on 31-03- 2006 i.e. the year under appeal and therefore the assessee is entitled for depreciation on it.
10 Now coming to the facts we find that on 14-11-2005, the work order for erection and installation of the wind mill was given to Suzlon Infrastructure Ltd. by assessee. [Page nos.26 to 30 of P.B. of assessee]. The purchase and work order was accepted by Suzlon Energy Ltd. and Suzlon Infrastructure Ltd. on 30-11-2005 [Page nos.24 and 25 of P.B. of assessee]. Thereafter, the assessee applied to Maharashtra Energy Development Agency [hereinafter referred to as "MEDA"] for infrastructure clearance for setting up 1.25 MW Wind Power Project vide application dated 15-11-2005. Infrastructure clearance for setting up of wind power project was received from MEDA vide letter dated 20 t h December, 2005 [Page no.23 of P.B. of assessee]. Approval of plan of installation of Wind Turbine Generator was received from 13 Superintending Engineer, Aurangabad, Government of Maharashtra through letter dated 22 n d March, 2006 [Page no.22 of P.B. of assessee]. The assessee obtained Test Report from Licensed Government Contractors Aditya Engineers vide letter dated 25 t h March, 2006. This certificate was issued from electric contractor for completion of electric work as per the requirement of electric line [Page no.21 of P.B. of assessee]. The assessee started receiving the parts of wind mill beginning from 07-03- 2006 and all parts except "Blade AE33" were received till 25-03- 2006. Blades were received only on 29-03-2006. Till this time, there is no dispute about the facts between the assessee and the Revenue. It appears that the AO doubted the capacity of the assessee to install the Blades of wind mill before 31-03-2006 which were received by the assessee on 29-03-2006. The AO, therefore, during the assessment proceedings recorded the statements of Shri S K Patil, Executive Engineer, MSEDCL, and Shri Namdev Chaudhari, Deputy Executive Engineer who at the relevant time were working at Nandurbar, to ascertain the installation and commissioning of the wind mill. On the basis of their statements, the AO found that neither of them were present at the time of commissioning of the wind mill, and therefore held that the contention of the assessee was not correct that the wind mill was commissioned on 31-03-2006. While doing so, the AO has failed to appreciate that as per the mandatory requirements, these officers were not required to be present in person at the time of commissioning; rather, their representatives were required to be present and the AO has not said that even their representatives were not present at the time of commissioning.
14We further find that same Executive Engineer who appeared before the AO, has given the report to Superintending Engineer that the wind mill was commissioned on 31-03-2006 vide his letter dated 15-04-2006. He confirmed the commissioning of wind mill in presence of representatives from his office, representatives of Executive Engineers, O&M Division, Nandurbar, representatives of Assistant Engineer, O&M Sub Division, Nandurbar, representative of MEDA and representative of customer. But, surprisingly the AO did not ask even a single question about veracity of this report. This report is available at page nos.65 and 66 of the Revenue's paper book itself and reads as under:-
"A letter dated 15-04-2006 written by MSEDCL reads as under:-
"SE/NDBR/Tech/Wind/No. 1566 Date: 15-04-2006 To The Superintending Engineer, Maharashtra State Electricity Distribution Company Ltd., O & M Circle, Dhule: 424 002 Sub:- Commissioning of 1 X 1250 kw Wind Electric Generator in respect of M/s C Dinesh & Co., at K411, R.S. No.111, Village: Akhatwade, Taluka: Nandurbar, District: Nandurbar Reference:
1. Commissioning Report dated 31-03-2006
2. Letter No.SE/DHL/T WIND/2382 dated 27-03-2006
3. H.O.Letter No.DIR (O)/MSEDCL/193 dated 03-03-2006
4. H.O.Letter No.DIR (O)/MSEDCL/04613 dated 21.02.06
5. H.O.Letter No.DIR (O)/Suzlon/26979 dated 19-08-2005
6. H.O.Letter No.DIR (O)/810 dated 22.08.2005 15 With the reference to above, this is to inform you that 33 kV supply & 1 X 1250 kW Wind Electric Generator (which is ready for Generation) / Transformer in respect of M/s C Dinesh & Co., at Location no. K411, Village: Akhatwade, Taluka: Nandurbar, District: Nandurbar has been commissioned on 31-03-2006 in presence of representative of The Superintending Engineer, O & M Circle, Dhule, representative of The Executive Engineer, O & M Division, Nandurbar, representative of The Assistant Engineer, O & M Sub Division, Nandurbar, representative of MEDA and representative of customer. The details Wind Electric Generator are as under:-
1. Wind Turbine Generator:
Village: Akhatwade, Taluka: Nandurbar, District: Nandurbar Location: K 411 R.S.No.111 No. of WTG: 1x1250 kW Make: Flender Loher Sr. No.5138296 Output: 250 / 1250 kW Frequency: 50 HZ Current: 1175 A Voltage: 690 V
2. Main Metering Details:
Metering at 220 kV/33kV Jamde Sub Station, Taluka: Sakri, District: Dhule Suzlon Feeder 8 Electronic Trivector Meter:
Make: Elster Metering (P) Limited, India Sr. No. 04738079 (Alpha S+) 3 Check Metering Details:
Metering at 220 kV/33 kV Jamde Sub Station, Taluka: Sakri, District: Dhule Suzlon Feeder 8 Electronic Trivector Meter Make: Elster Mtering (P) Limited, India Sr. No.04738067 (Alpha S+) 4 Transmission line 33 kV Single Circuit Over Head Transmission line with 0.1 ACSR conductor, Length total is 0.24 KM Sd/-
Executive Engineer, O & M Division, Nandurbar Copy S. W.R. To: The General Manager, MEDA, Pune 16 Copy To:-
1. The Assistant Engineer, O&M Sub Division, Nandurbar
2. M/s C Dinesh & Co., Mumbai Enclosures: Copies of Commissioning Report"
Thus, we see that the AO has ignored the third party evidence of a Government Department i.e. MSEDCL in support of the assessee's claim that the wind mill was commissioned on 31-03- 2006.
We further find that the AO has doubted the commissioning of the wind mill on 31-03-2006 by finding fault with the Meter Reading procedure of MSEDCL by ignoring the fact that the meter reading was taken in the presence of the representatives of various agencies, which is clear from page-69 of Revenue's paper book, which is reproduced as under:-
"MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LTD.
Check Meter 8 220/33 kv Jamde Sub Station, Taluka:
Sakri, District: Dhule Circuit No. 8 C T Ratio 800 - 400 / 1-1-1-1 A Meter No. 04 738 067 (Alpha S +) Date & Time 31.03.2006 13.21:00 Hrs.
MF. 80000
IMPORT EXPORT
Sr. Parameters Current M.F. Sr. Parameters Current M.F.
No. No.
31.03.06 31.03.06
1 KWH 0.5 80000 1 KWH 0.4 80000
A-Zone 0 80000 A-Zone 0 80000
B-Zone 0.4 80000 B-Zone 0.2 80000
17
C-Zone 0 80000 C-Zone 0.1 80000
D-Zone 0 80000 D-Zone 0 80000
Total 0.4 80000 Total 0.3 80000
2 KVARH.G 0.3 80000 2 KVARH.G 0.2 80000
3 KVARH D 0 80000 3 KVARH D 0 80000
4 KVAH 0.7 80000 4 KVAH 0.5 80000
Sd/-
For Wind Farm Representative
Authorized Signatory
Junior Engineer Assistant Engineer Project Executive Officer Unit Incharge O&M Sub Division MEDA, Dhule Nandurbar Executive Engineer Superintending Engineer, O&M Division, Nandurbar O&M Circle, Dhule"
The AO has also ignored the bill of Rs.98/- raised by the assessee about 29 units of electricity bill delivered to MSEDCL which is available at page-18 of the assessee's paper book. Similarly, he also ignored the fact that the assessee delivered 125529 units of electricity to MSEDCL from 31-03-2006 to 30-04-2006 which is available at page-16 of the paper book. This generation of electricity includes the electricity generated on 31-03-2006 after previous reading on 31-03-2006. Thus, the assessee raised the Bill of Rs.439285/- only for the month of April, 2006 covering the period from 31-03-2006 to 30-04-2006, which is available at page no.16 of the paper book of assessee and as per the report of MSEDCL which is available at page 17 of the paper book of assessee. The relevant bills and report of MSEDCL are reproduced as under:-
18Page-18 "M/s Dinesh & Co.
Diamond Importers, Exporters & Manufacturers To Invoice No. _______ Superintending Engineer, Date: ____________ Maharashtra State Electricity MSEDCL Report Ref. No. Distribution Co. Ltd., ____________________ Dhule (M.S.) Developer No.: K-411 Sr . P ar tic u lar s Q ua nt it y Ra te A mo u nt No . KW H R s. P er R s.
KW H 1 NET KW H EXP O RT TO MSE D C L Mo n t h I mp o r t Exp o r t Net 28 3 .5 98 K wh K wh I mp o r t K wh Mar c h '0 6 29 1 28 Les s 2 RE ACT I V E 0 0 .2 5 0 P OW ER EXP O RT BY MSE D C L T o tal RK V AH exp o r t fr o m the GR I D of MSE D C L to o ur W ind Mi ll s as p er t h e cer t i fi cat e fr o m MSE D C L ( co p y en clo sed ) T o tal 98 Ro u nd ed O f f 98 A mo u nt i n W o r d s R up ees N i net y ei g h t o n l y C. C. T o T D ( Co m) Fo r , C CE ( Co m) Di ne s h MSE D CK & Co .19
- M u mb a i Au t ho r is ed Si g n ato r y Page-16 "M/s Dinesh & Co.
Diamond Importers, Exporters & Manufacturers To Invoice No.2006/07/02 Superintending Engineer, Date: 22.05.06 Maharashtra State Electricity MSEDCL Report Ref. No. Distribution Co. Ltd., 3814 dt. 11.05.06 Dhule (M.S.) Developer No.:
Sr . P ar tic u lar s Q ua nt it y Ra te A mo u nt No . KW H R s. P er R s.
KW H 1 NET KW H EXP O RT TO MSE D C L Mo n t h I mp o r t Exp o r t Net 125510 3 .5 439285 K wh K wh I mp o r t K wh Ap r i l '0 6 125529 19 125510 Les s 2 RE ACT I V E 0 0 .2 5 0 P OW ER EXP O RT BY MSE D C L T o tal RK V AH exp o r t fr o m the GR I D of MSE D C L to o ur W ind Mi ll s as p er t h e cer t i fi cat e fr o m MSE D C L ( co p y 20 en clo sed ) T o tal 439285 Ro u nd ed O f f 439285 A mo u nt i n W o r d s R up ees Fo ur l ac s t hi r t y ni n e tho u sa nd t wo h u nd r ed a nd e i g ht y fi v e o nl y C. C. T o T D ( Co m) Fo r , C CE ( Co m) Di ne s h MSE D CK & Co .
- M u mb a i Au t ho r is ed Si g n ato r y Page-17 MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LTD., O 7 M CIRCLE, DHUL No.SE/Dh/Tech/Wind Date: 11 MAY 2006 No.38140 To C Dinesh & Co.
846/817, Prasad Chambers, Opera House, Mumbai-400004 Date of Commissioning Loc. No. Comm.Date Feeder With Locations & Feeders K411 31.Mar.06 Jamde 8
1) MEDA Ltr.Ref.No.WFP/C.Dinesh/1.25MW/05-06/2098 Dated 28-03-2006
2) H.O. Ltr.No.DIR(O)/MSECL/193 Dated 03-03-2006
3) H.O. Ltr.No.DIR(O)/MSECL/04613 Dated 21-02-2006
4) H.O. Ltr.No.DIR(O)/SUZLON/26979 Dated 19.08.2005
5) H.O. Ltr.No.DIR(O)/810 Dated 22-08-2005 WTG Capacity:
Import KWh Generation (Energey Delivered at MSEDCL grid) For the Month 1x1250 (KW) WTG wise Monthly Import KWh From 31-Mar-06 To 30-Apr-06 21 Total KWH Generation 133152 Sr. Energy Description Units Net Import No. KWh Generation (i.e. Net Energy Delivered to MSEDCL Grid) [Import Kwh - Export KWh] 1 Import KWh Generation (Energy Delivered to MSEDCL 125529 2 Export KWh Generation 125509 (Energy Consumption from Grid) 19 3 RKVAh Consumption from MSEDCL, Grid 0 This again is a third party evidence of a Government Department which cannot be ignored without bringing anything to the contrary on record. The same has not been done by the AO.
11 In the light of these third party evidences / documents in support of the commissioning of the wind mill on 31 s t March,2006, which remained undisputed by the Revenue till the time of hearing of this appeal before us, we have no option but to 22 hold that the wind mill was commissioned on 31 s t March, 2006 and the learned CIT(A) has rightly allowed the claim of depreciation on it. We are, therefore, not inclined to interfere with the order of the learned CIT(A). The same is hereby upheld.
12 In the result, the appeal filed by the Revenue is dismissed.
Order pronounced in the court today on 16-02-2012 Sd/- Sd/-
(A MOHAN ALANKAMONY) (D K TYAGI)
ACCOUNTANT MEMBER JUDICI AL MEMBER
Date : 16-02-2012
Copy of the order forwarded to:
1. M/s C Dinesh & Co., 5/897, Kalpavruksha, Ghiya Sheri, Mahidharpura, Surat
2. The Asst. Commissioner of Income-tax, Central Circle-3, Room No. 507, Aayakar Bhavan, Majura Gate, Surat
3. CIT concerned
4. CIT(A)-II, Ahmedabad
5. DR, ITAT, Ahmedabad Bench-B, Ahmedabad
6. Guard File BY ORDER Deputy Registrar Assistant Registrar ITAT, AHMEDABAD