The ACIT, Central Circle-3,, Surat v. M/s. C. Dinesh &Co.,, Surat

ITA 3394/AHD/2009 | 2006-2007
Pronouncement Date: 16-02-2012 | Result: Dismissed

Appeal Details

RSA Number 339420514 RSA 2009
Assessee PAN AAAFC0676Q
Bench Ahmedabad
Appeal Number ITA 3394/AHD/2009
Duration Of Justice 2 year(s) 1 month(s) 23 day(s)
Appellant The ACIT, Central Circle-3,, Surat
Respondent M/s. C. Dinesh &Co.,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 16-02-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 16-02-2012
Date Of Final Hearing 03-01-2012
Next Hearing Date 03-01-2012
Assessment Year 2006-2007
Appeal Filed On 24-12-2009
Judgment Text
-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 OF INCOME-TAX CENTRAL CIRCLE-3 ROOM NO. 507 AAYAKAR BHAVAN MAJURA GATE SURAT V/S M/S C DINESH & CO. 5/897 KALPAVRUKSHA GHIYA SHERI MAHIDHARPURA 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 O R D E R PER D K TYAGI (JM) :- THIS IS REVENUES APPEAL AGAINST AN ORDER DATED 16-10-2009 PASSED BY THE LEARNED COMMIS SIONER 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 ACC OUNT 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 A S THE ACT] WAS CONDUCTED ON 21-10-2005 AT THE BUSINESS PREMISE S OF THE ASSESSEE AT KALPVRUKSHA GHIA SHERI MAHIDHARPURA SURAT. 2 DURING 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 DIA MONDS IN THE YEAR UNDER CONSIDERATION AND IN THE EARLIER YEA R ALSO. THE ASSESSEE HAS INSTALLED A WIND MILL K-411 AT VILLAGE AKHATWADE DISTRICT : NANDURBAR AND GENERATE THE ELECTRICITY A ND SELL IT TO THE MAHARASHTRA GOVERNMENT AND EARNING THE INCOME. DURI NG 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 3 1-03-2006 AT THE FAG END OF THE YEAR. TO VERIFY THE GENUINENE SS 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 CIRCL E DHULE REGARDING THE COMMENCEMENT OF THE WIND MILL BELONGI NG TO C DINESH & CO. AGAIN ON 05-06-2008 ANOTHER LETTER W AS ISSUED TO THE ABOVE ENGINEERS CALLING THE DETAILS REGARDING T HE NAME AND ADDRESS OF THE REPRESENTATIVE OF THE ENGINEER IN WH OSE PRESENCE THE WIND ELECTRICAL GENERATOR WAS COMMISSIONED ON 3 1-03-2006. 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 T HE ASSESSEE TO FILE VARIOUS EVIDENCES IN SUPPORT OF ASSESSEES CLAIM OF DEPRECIATION ON POWER WIND MILL. THE ASSESSEE SUBMI TTED THE EVIDENCES IN SUPPORT OF THE EVENTS. HOWEVER THE AO RECORDED THE 3 STATEMENTS OF S K PATIL EXECUTIVE ENGINEER AND NAM DEV T CHAUDHARY DEPUTY EXE. ENGINEER WHO AT THE RELEVAN T TIME WORKING AS EXECUTIVE ENGINEER AT NANDURBAR. THE AO WAS NOT SATISFIED WITH THE ASSESSEES CLAIM OF DEPRECIATION AND HE DISALLOWED THE CLAIM OF DEPRECIATION ON WIND MILL A S PER HIS FINDINGS GIVEN AT PAGE NOS.2 TO 11 OF THE ASSESSMEN T 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 INSTALLE D BUT HE WAS IN SUB-STATION JAMADE. THEREFORE HE WAS UNABLE TO GI VE INFORMATION REGARDING THE COMMISSION OF WIND MILL K-411 AND GEN ERATION 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 31/0 3/2006 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 PR OVED 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 CON FESSED IN HIS STATEMENT RECORDED U/S.131 OF THE I.T.ACT 1961 THA T HE HAS NOT TAKEN INDIVIDUAL METER READING OF K/411 WIND MILL SITUATE D AT VILLAGE AKHATWADE TALUKA NANDURBAR WHICH EVIDENT THAT NO O NE WAS PRESENT AT THE SIGHT ON 31/03/2006. THE EXECUTIVE ENGINEER AND THE ASSISTANT ENGINEER WERE AT SUB STATION JAMADE WHERE THE FEED ER 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 ABOV E ALSO PROVES THAT IF ELECTRICITY GENERATION IS OF THE ABOVE DATE AND ABOVE TIME THE 4 GENERATION MUST BE HIGH WHICH EVIDENT THAT THE GENE RATION OF ELECTRICITY SHOWN BY THE ASSESSEE WAS GIVEN BY SUZL ON 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 CI T(A). THE ASSESSEE MADE THE FOLLOWING SUBMISSIONS:- A) PERMISSION FROM DIRECTOR MSEDCL (MAHARASTRA STA TE 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 EN ERGY LIMITED. B) ON 14/11/2005 THE WORK ORDER FOR ERECTION & INS TALLATION OF THE WINDMILL WAS GIVEN TO SUZLON INFRASTRUCTURE LIMITED . C) ASSESSEE APPLIED TO MAHARASATRA ENERGY DEVELOPME NT 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 A GENCY VIDE LETTER DATED 20TH DECEMBER 2005. E) APPROVAL OF PLAN OF INSTALLATION OF WIND TURBINE GENERATOR HAS BEEN RECEIVED FROM SUPERINTENDING ENGINEER AURANGA BAD GOVT. OF MAHARASHTRA THROUGH LETTER DATED 22ND MARC H 2006. F) TEST REPORT HAS BEEN OBTAINED BY ASSESSEE FROM L ICENSED GOVT. CONTRACTORS ADITYA ENGINEERS VIDE LETTER DATED 25T H MARCH 2006. THIS CERTIFICATE WAS ISSUED FROM ELECTRIC CON TRACTOR FOR COMPLETION OF ELECTRIC WORK AS PER THE REQUIREMENT OF ELECTRIC LINE. G) ASSESSEE STARTED RECEIVING THE PARTS OF WIND MIL L BEGINNING FROM 7/3/2006 AND ALL PARTS EXCEPT 'BLADE AE33' WERE REC EIVED TILL 25/3/2006. THE SAID PARTS WERE RECEIVED ONLY ON 29/ 3/2006. H) ASSESSEE RECEIVED LETTER DATED 28/3/2006 FROM MA HARASTRA ENERGY DEVELOPMENT AGENCY GIVING CLEARANCE FOR 5 COMMISSIONING THE PROJECT. IN THIS LETTER IT WAS S TATED THAT ASSESSEE SHALL INFORM THE COMMISSIONING SCHEDULE FO R PROJECT SO THAT MEDA COULD DEPUTE THEIR REPRESENTATIVE FOR WIT NESSING COMMISSIONING OF WIND POWER PROJECT. I) IN MEANWHILE CIVIL ELECTRICAL WORKS WERE ALSO C OMPLETED BY M/S. SUZLON INFRASTRUCTURE LTD. COMMISSIONING ERECT ION AND INSTALLATION WAS ALSO COMPLETED ON 31.03.06. ACCORD INGLY ASSESSEE RECEIVED THE BILL DATED 30.03.06 FOR CIVIL WOKS AND BILL DATED 31.03.06 FOR ELECTRICAL ERECTION INSTALLATI ON AND COMMISSION WORKS FROM M/S. SUZLON INFRASTRUCTURE LT D. J) ACCORDINGLY ASSESSEE INFORMED THE COMMISSIONING SCHEDULE TO MEDA PROPOSING COMMISSIONING TO BE TAKEN PLACE ON 31/3/2006 AFTER GETTING WIND MILL .COMPLETELY INSTA LLED. K) CONFIRMATION OF MSEDCL HAS BEEN RECEIVED BY ASSE SSEE REGARDING COMMISSION OF THE WIND MILL ON 31/03/2006 FROM SUPERINTENDING ENGINEER O & M CIRCLE DHULE. HE CO NFIRMED COMMISSIONING OF PLANT IN PRESENCE OF REPRESENTATIV E FROM HIS OFFICE REPRESENTATIVE OF EXECUTIVE ENGINEER O & M DIVISION NANDURBAR REPRESENTATIVE OF ASSISTANT ENGINEER O & M SUB DIVISION NANDURBAR REPRESENTATIVE OF MEDA AND REP RESENTATIVE OF CUSTOMER. L) ASSESSEE HAS GENERATED THE ELECTRICITY OF 43 UNI TS AND AFTER CONSIDERING LOSS IN TESTING OF 14 UNITS AND CONSUMP TION 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 DURI NG THE PERIOD OF 28TH FEBRUARY 2006 TO 31 ST MARCH 2006 IN GENERATION REPORT CONTAINING SIGNATURE OF ACCOUNT OFFICER EXE CUTIVE 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 TH E MONTH OF APRIL THE COMMISSIONING DATE HAS BEEN MENTIONED AS 31.03.06. 6 THE PERIOD FOR GENERATION HAS BEEN MENTIONED FROM 3 1.03.06 TO 30.04.06. THE APPELLANT PLACED RELIANCE ON THE DECISION OF HO NOURABLE 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 DISALLOWAN CE OF DEPRECIATION WITH THE FOLLOWING OBSERVATIONS:- 4. I HAVE CONSIDERED THE FACTS AND SUBMISSIONS MAD E BY ASSESSEE. I AGREE WITH THE APPELLANT'S VIEW FOR THE FOLLOWING R EASONS: A) ASSESSEE HAS PUT UP ALL THE EVIDENCE IN SUPPORT OF CLAIM OF DEPRECIATION ON POWER WIND MILL PROJECT. ALTHOUGH N O SHOW CAUSE NOTICE WAS ISSUED BY THE ASSESSING OFFICER FO R HIS PROPOSAL TO DISALLOW THE DEPRECIATION. B) THE SUMMONS WERE ISSUED ONLY TO TWO PERSONS WHOS E REPRESENTATIVE ATTENDED DURING COMMISSIONING OF PLA NT. NO INQUIRY WAS MADE FROM ANY OTHER PERSON WHO ISSUED V ARIOUS LETTERS IN CONNECTION WITH INFRASTRUCTURE CLEARANCE AND CLEARANCE FOR COMMISSIONING OF THE PLANT OR REPRESE NTATIVE OF THE PERSONS WHO WERE ACTUALLY PRESENT AT THE TIME O F INSTALLATION. C) THE METER IS ATTACHED WITH WIND MILL FOR READING OF OUTPUT AND M/S SUZLON ENERGY LIMITED .TAKES READING OF METER O F ALL WIND MILLS AND THE TOTAL OF READING OF ALL WIND MILLS AR E TALLIED WITH READING OF METER AT SUB STATION. IT WAS STATED BY S HRI NAMDEV T CHAUDHARY IN THIS STATEMENT THAT THE BREAK-UP OF UN ITS GENERATED BY INDIVIDUAL TURBINES ARE GIVEN BY REPRESENTATIVE OF THE DEVELOPER/SUZLON TO THE MSEDCL AND THE INDIVIDUAL W IND MILL TURBINE READINGS ARE NOT TAKEN BY HIM OR MSEDCL. ON THE BASIS OF DATA FROM SUZLON THE MSEDCL IS ISSUING THE BILL S. THIS ASPECT OF THE MATTER WAS NOT CONFRONTED TO SUZLON E NERGY LTD. OTHERWISE IN ABSENCE OF ANY ENQUIRY FROM SUZLON ENE RGY LTD. THE FACTS STATED BY ASSESSEE ALSO HAVE TO BE ACCEPT ED BY ASSESSING OFFICER. 7 D) MSEDCL HAS CONFIRMED NET IMPORT OF 28 UNITS DURI NG 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 MSE DCL 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 TH E LAST DAY OF THE MONTH. THUS FIRST BILL WAS FROM THE PERIOD 28.0 2.2006 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 ASSE SSMENT 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 G ENERATED ON 31.03.2006 AND PER HOUR UNIT GENERATED DURING THE N EXT MONTH ON PAGE 10 PARA 2 & 3. WHILE MAKING COMPARISON AS SESSING OFFICER HAS NOT CONSIDERED THE FACT THAT THE DAY ON WHICH TESTING HAS BEEN DONE AND COMMERCIAL PRODUCTION HAS BEEN ST ARTED SHOULD NOT BE COMPARED WITH ANY OTHER NORMAL DAY. F URTHER METER READING WAS USED TO BE DONE AT THE SUNSET TIM E ON THE LAST DAY OF THE MONTH AND NOT AT 24:00 HOURS AS STATED B Y ASSESSING OFFICER. H) IN REPLY TO INFORMATION CALLED BY ACIT U/S 133(6 ) M/S. SUZLON INFRASTRUCTURE LTD. HAS SUBMITTED THEIR REPLY CONFI RMING 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 INSTA LLATION OF WIND MILL. HE DID NOT DENY THE ACTUAL INSTALLATION AND C OMMISSIONING OF WIND MILL. ASSESSEE NEVER STATED THAT SHRI SUBHA SH PATIL WAS PRESENT AT THE TIME OF INSTALLATION AND COMMISSIONI NG OF THE PLANT. ASSESSEE ONLY PRODUCED THE CERTIFICATE FROM SUPERINTENDENT ENGINEER MSEDCL CONFIRMING THE PRES ENCE 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 S TATEMENT AND HIS NONAVAILABILITY AT THE SITE ON 31.03.06. J) IN THE STATEMENT RECORDED U/S 131 SHRI NAMDEO C HAUDHARI STATED THAT HE WAS NOT PRESENT AT THE TIME OF INSTA LLATION OF WIND MILL. HE DID NOT DENY THE ACTUAL INSTALLATION AND COMMISSIONINGOFWIND MILL. ASSESSEE NEVER STATED THA T SHRI NAMDEO CHAUDHARI WAS PRESENT AT THE TIME OF INSTALL ATION AND COMMISSION OF THE PLANT. ASSESSEE PRODUCED THE CERT IFICATE FROM SUPERINTENDENT ENGINEER MSEDCL CONFIRMING THE PRES ENCE OF REPRESENTATIVE OF VARIOUS AUTHORITIES INCLUDING THE REPRESENTATIVE OF SHRI NAMDEO CHAUDHARI AT THE TIME OF INSTALLATIO N. 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 BLA DE HE STATED THAT IT WOULD DEPEND UPON COMPANY AND ITS CA PACITY. HE DID NOT DENY THE INSTALLATION OF BLADE BEFORE 31.03 .06. HE DID NOT DENY THE CAPACITY OF ASSESSEE OR SUZLON INFRASTRUCT URE 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). HOWEV ER IN THAT CASE IT HAS BEEN FOUND BY HONOURABLE COURT THA T MACHINERY WAS READY TO USE BUT ASSESSEE HAS NOT USED MACHINER Y AT ALL DURING THE RELEVANT YEAR. FACTS ARE DIFFERENT IN AS SESSEE'S CASE. ASSESSEE HAS CLAIMED THAT WIND MILL WAS COMMISSIONE D 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 AC IT V. ASHIMA SYNTEX LTD. CITED SUPRA. ACCORDINGLY THE DISALLOWANCE OF DEPRECIATION MADE BY THE ASSESSING OFFICER IS DELETED. 9 7 AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A) THE REVENUE HAS COME IN APPEAL BEFORE US. THE LEARNED DR SUPPOR TED THE ORDER OF THE AO AND REFERRED TO THE GROUNDS OF APPE AL 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 PER SONS WHO ISSUED VARIOUS LETTERS IN CONNECTION WITH THE INFRASTRUCTURE CLEARANCE FOR COMMISSIONING OF THE P LANT OR REPRESENTATIVE OF THE PERSONS WHO WERE ACTUALLY PRE SENT AT THE TIME OF INSTALLATION OTHER THAN THE ASST. ENGIN EER AND EXECUTIVE ENGINEER OF MSDECL IGNORING THAT ONLY FI ELD LEVEL OFFICERS LIKE THE ASST. ENGINEER AND EXECUTIV E ENGINEER THE TWO IMPORTANT FUNCTIONARIES OF MSEDCL ARE RIGHT PERSONS TO CONFIRM THE INSTALLATION AND COMMI SSIONING OF THE WIND MILL RATHER THAN OFFICIALS WHO GIVE VAR IOUS 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 I NSTALL 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 CR EATE FACTS ON PAPER IN SUCH WAY SO AS TO ENABLE HIM TO CLAIM DEPRECIATION FOR F.Y.2005-06 AS IS EVIDENT FROM TH E LETTER OF THE SUPERINTENDING ENGINEER DATED 27.03.2006 TO EXECUTIVE ENGINEER STATING THAT M/S. DINESH & CO. H AS COMPLETED ALL THE FORMALITIES SUCH AS PAYMENT TEST REPORTS SUBMISSION OF UNDERTAKING PPA PRIOR TO THE DELIVE RY 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 S UZLON ENERGY LTD. REGARDING THE FACTS STATED BY SHRI N.T.CHOUDHARY ASST. ENINEER ABOUT METER READING AN D ITS BILLING OF THE ELECTRICITY GENERATED BY THE WIND MI LLS IGNORING THAT SUZLON ENERGY LTD. IS SELLING ITS PRO DUCTS BY SHOWING TAX ADVANTAGE OF 80% DEPRECIATION ON WIND M ILL 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 EXECUT IVE ENGINEER AND SUPERINTENDING ENGINEER MSDECL O & M CIRCLE DHULE IGNORING THAT THE METER READING OFFIC ER SHRI N.T.CHOUDHARY HIMSELF CONFIRMED THAT HE HAS NOT TAK EN THE INDIVIDUAL METER READING AND HE HAS TAKEN ONLY THE 33 KV FEEDER READING WHICH IS THE CUMULATIVE METER READI NG OF AROUND 20 WIND MILLS AND THE SEPARATE READING FOR E ACH WIND MILL IS REPORTED BY THE REPRESENTATIVE OF THE SUZLON ENERGY LTD. LEAVING FLEXIBILITY FOR ADJUSTMENT BY S UZLON ENERGY LTD. ON BEHALF OF THE ASSESSEE AMONG THE SP LIT 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 REPOR T WHICH CONTAINS THE SIGNATURE OF ACCOUNTS OFFICERS EXECUT IVE ENGINEER AND SUPERINTENDING ENGINEER MSDECL O & M CIRCLE DHULE IGNORING THAT NEITHER THE ASST. ENGIN EER AND EXECUTIVE ENGINEER OF MSDECL NOR ANY OF THEIR REPRESENTATIVE WERE PRESENT ON THE DAY OF COMMISSI ONING OF PLANT AS ALLEGED BY THE ASSESSEE WHOSE PRESENCE IS MANDATORY BEFORE COMMISSIONING OF SUCH A PLANT IN T HEIR JURISDICTION TO VERIFY THE VERACITY OF THE CLAIM O F 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 SI NCE 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 HONBLE GUJARAT HI GH COURT IN THE CASE OF ACIT VS. ASHIMA SYNTEX LTD. IS APPLI CABLE TO THE PRESENT CASE IGNORING THAT IN THE INSTANT CASE THE ASSET WAS NOT PUT TO USE NOR ANY TRIAL RUN WAS CARRIED OU T BEFORE 31.03.2006 SINCE THE INSTALLATION OF WIND MILL WAS NOT COMPLETED BEFORE 31.03.2006 AS PER THE FACTS AND E VIDENCES 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 TH E ABOVE EXTENT. 8 THE LEARNED COUNSEL OF THE ASSESSEE SUPPORTED THE ORDER OF THE LEARNED CIT(A) AND REITERATED THE SUBMISSIONS M ADE BEFORE HIM. 9 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE FA CTS OF THE CASE AND FIND THAT THE ASSESSEE IS ENGAGED IN THE B USINESS OF IMPORT OF ROUGH DIAMONDS MANUFACTURING AND EXPORTS OF POLISHED DIAMONDS. DURING THE YEAR UNDER APPEAL THE ASSESSE E HAS INSTALLED A WIND MILL K-411 AT VILLAGE AKHATWADE D ISTRICT: NANDURBAR IN THE STATE OF MAHARASHTRA. THE ELECTRIC ITY 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 COMMISSIO NED ON 31- 03-2006. THE AO HOWEVER WAS NOT SATISFIED WITH TH E CLAIM OF 12 THE ASSESSEE THAT THE WIND MILL WAS COMMISSIONED ON 31-03-2006 FOR THE REASONS GIVEN BY HIM IN HIS ASSESSMENT ORDE R 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 TH AT THE WIND MILL WAS COMMISSIONED ON 31-03-2006. THE REASONS FO R REACHING AT THIS CONCLUSION HAVE ALREADY BEEN REPRODUCED IN PARA-6 OF THIS ORDER. THUS THE ONLY DISPUTE BEFORE US IS AS TO WH ETHER THE AO WAS RIGHT IN HOLDING THAT THE WIND MILL WAS NOT COM MISSIONED DURING THE YEAR UNDER APPEAL AND THEREFORE DEPRECIA TION CLAIMED ON IT WAS NOT ALLOWABLE TO THE ASSESSEE OR THE LEAR NED CIT(A) WAS RIGHT IN HOLDING THAT THE WIND MILL WAS COMMISSIONE D ON 31-03- 2006 I.E. THE YEAR UNDER APPEAL AND THEREFORE THE A SSESSEE IS ENTITLED FOR DEPRECIATION ON IT. 10 NOW COMING TO THE FACTS WE FIND THAT ON 14-11-20 05 THE WORK ORDER FOR ERECTION AND INSTALLATION OF THE WIN D MILL WAS GIVEN TO SUZLON INFRASTRUCTURE LTD. BY ASSESSEE. [P AGE NOS.26 TO 30 OF P.B. OF ASSESSEE]. THE PURCHASE AND WORK ORD ER WAS ACCEPTED BY SUZLON ENERGY LTD. AND SUZLON INFRASTRU CTURE LTD. ON 30-11-2005 [PAGE NOS.24 AND 25 OF P.B. OF ASSESSEE] . THEREAFTER THE ASSESSEE APPLIED TO MAHARASHTRA ENERGY DEVELOPM ENT AGENCY [HEREINAFTER REFERRED TO AS MEDA] FOR INFRASTRUCT URE CLEARANCE FOR SETTING UP 1.25 MW WIND POWER PROJECT VIDE APPL ICATION DATED 15-11-2005. INFRASTRUCTURE CLEARANCE FOR SET TING UP OF WIND POWER PROJECT WAS RECEIVED FROM MEDA VIDE LETTER DA TED 20 TH DECEMBER 2005 [PAGE NO.23 OF P.B. OF ASSESSEE]. A PPROVAL OF PLAN OF INSTALLATION OF WIND TURBINE GENERATOR WAS RECEIVED FROM 13 SUPERINTENDING ENGINEER AURANGABAD GOVERNMENT OF MAHARASHTRA THROUGH LETTER DATED 22 ND MARCH 2006 [PAGE NO.22 OF P.B. OF ASSESSEE]. THE ASSESSEE OBTAINED TEST R EPORT FROM LICENSED GOVERNMENT CONTRACTORS ADITYA ENGINEERS VI DE LETTER DATED 25 TH MARCH 2006. THIS CERTIFICATE WAS ISSUED FROM ELE CTRIC CONTRACTOR FOR COMPLETION OF ELECTRIC WORK AS PER T HE 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 RECEIVE D TILL 25-03- 2006. BLADES WERE RECEIVED ONLY ON 29-03-2006. TI LL THIS TIME THERE IS NO DISPUTE ABOUT THE FACTS BETWEEN THE ASS ESSEE AND THE REVENUE. IT APPEARS THAT THE AO DOUBTED THE CAPACI TY 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 RECORD ED THE STATEMENTS OF SHRI S K PATIL EXECUTIVE ENGINEER M SEDCL AND SHRI NAMDEV CHAUDHARI DEPUTY EXECUTIVE ENGINEER WH O AT THE RELEVANT TIME WERE WORKING AT NANDURBAR TO ASCERTA IN THE INSTALLATION AND COMMISSIONING OF THE WIND MILL. O N 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 S O THE AO HAS FAILED TO APPRECIATE THAT AS PER THE MANDATORY REQUIREMENTS THESE OFFICERS WERE NOT REQUIRED TO BE PRESENT IN P ERSON AT THE TIME OF COMMISSIONING; RATHER THEIR REPRESENTATIVE S WERE REQUIRED TO BE PRESENT AND THE AO HAS NOT SAID THAT EVEN THEIR REPRESENTATIVES WERE NOT PRESENT AT THE TIME OF COM MISSIONING. 14 WE FURTHER FIND THAT SAME EXECUTIVE ENGINEER WHO AP PEARED BEFORE THE AO HAS GIVEN THE REPORT TO SUPERINTENDI NG ENGINEER THAT THE WIND MILL WAS COMMISSIONED ON 31-03-2006 V IDE HIS LETTER DATED 15-04-2006. HE CONFIRMED THE COMMISSIO NING OF WIND MILL IN PRESENCE OF REPRESENTATIVES FROM HIS O FFICE REPRESENTATIVES OF EXECUTIVE ENGINEERS O&M DIVISIO N NANDURBAR REPRESENTATIVES OF ASSISTANT ENGINEER O &M SUB DIVISION NANDURBAR REPRESENTATIVE OF MEDA AND REP RESENTATIVE OF CUSTOMER. BUT SURPRISINGLY THE AO DID NOT ASK EVEN A SINGLE QUESTION ABOUT VERACITY OF THIS REPORT. THIS REPOR T IS AVAILABLE AT PAGE NOS.65 AND 66 OF THE REVENUES PAPER BOOK ITSE LF 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 D INESH & CO. AT LOCATION NO. K411 VILLAGE: AKHATWADE TALUKA: NAND URBAR DISTRICT: NANDURBAR HAS BEEN COMMISSIONED ON 31-03- 2006 IN PRESENCE OF REPRESENTATIVE OF THE SUPERINTENDING EN GINEER O & M CIRCLE DHULE REPRESENTATIVE OF THE EXECUTIVE ENGI NEER O & M DIVISION NANDURBAR REPRESENTATIVE OF THE ASSISTAN T ENGINEER O & M SUB DIVISION NANDURBAR REPRESENTATIVE OF MEDA AND REPRESENTATIVE OF CUSTOMER. THE DETAILS WIND ELECTR IC GENERATOR ARE AS UNDER:- 1. WIND TURBINE GENERATOR: VILLAGE: AKHATWADE TALUKA: NANDURBAR DISTRICT: NA NDURBAR LOCATION: K 411 R.S.NO.111 NO. OF WTG: 1X1250 KW MAKE: FLENDER LOHER SR. NO.5138296 OUTPUT: 250 / 1 250 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 WI TH 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 NANDUR BAR 2. M/S C DINESH & CO. MUMBAI ENCLOSURES: COPIES OF COMMISSIONING REPORT THUS WE SEE THAT THE AO HAS IGNORED THE THIRD PART Y EVIDENCE OF A GOVERNMENT DEPARTMENT I.E. MSEDCL IN SUPPORT OF T HE ASSESSEES CLAIM THAT THE WIND MILL WAS COMMISSIONE D ON 31-03- 2006. WE FURTHER FIND THAT THE AO HAS DOUBTED THE COMMISS IONING OF THE WIND MILL ON 31-03-2006 BY FINDING FAULT WITH T HE METER READING PROCEDURE OF MSEDCL BY IGNORING THE FACT TH AT THE METER READING WAS TAKEN IN THE PRESENCE OF THE REPR ESENTATIVES OF VARIOUS AGENCIES WHICH IS CLEAR FROM PAGE-69 OF RE VENUES 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. NO. PARAMETERS CURRENT M.F. SR. NO. PARAMETERS CURRENT M.F. 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 EXECUTI VE 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 MSE DCL WHICH IS AVAILABLE AT PAGE-18 OF THE ASSESSEES PAPER BOOK. SIMILARLY HE ALSO IGNORED THE FACT THAT THE ASSESSEE DELIVERED 1 25529 UNITS OF ELECTRICITY TO MSEDCL FROM 31-03-2006 TO 30-04-2006 WHICH IS AVAILABLE AT PAGE-16 OF THE PAPER BOOK. THIS GENERA TION OF ELECTRICITY INCLUDES THE ELECTRICITY GENERATED ON 3 1-03-2006 AFTER PREVIOUS READING ON 31-03-2006. THUS THE ASSESSEE RAISED THE BILL OF RS.439285/- ONLY FOR THE MONTH OF APRIL 20 06 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 B OOK OF ASSESSEE. THE RELEVANT BILLS AND REPORT OF MSEDCL A RE REPRODUCED AS UNDER:- 18 PAGE-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. NO. PARTICULARS QUANTITY KWH RATE RS. PER KWH AMOUNT RS. 1 NET KWH EXPORT TO MSEDCL MONTH IMPORT KWH EXPORT KWH NET IMPORT KWH 28 3.5 98 MARCH06 29 1 28 LESS 2 REACTIVE POWER EXPORT BY MSEDCL TOTAL RKVAH EXPORT FROM THE GRID OF MSEDCL TO OUR WIND MILLS AS PER THE CERTIFICATE FROM MSEDCL (COPY ENCLOSED) 0 0.25 0 TOTAL 98 ROUNDED OFF 98 AMOUNT IN WORDS RUPEES NINETY EIGHT ONLY C.C. TO TD (COM) CE (COM) MSEDCK FOR C DINESH & CO. 19 MUMBAI AUTHORIS ED SIGNATOR 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. NO. PARTICULARS QUANTITY KWH RATE RS. PER KWH AMOUNT RS. 1 NET KWH EXPORT TO MSEDCL MONTH IMPORT KWH EXPORT KWH NET IMPORT KWH 125510 3.5 439285 APRIL06 125529 19 125510 LESS 2 REACTIVE POWER EXPORT BY MSEDCL TOTAL RKVAH EXPORT FROM THE GRID OF MSEDCL TO OUR WIND MILLS AS PER THE CERTIFICATE FROM MSEDCL (COPY 0 0.25 0 20 ENCLOSED) TOTAL 439285 ROUNDED OFF 439285 AMOUNT IN WORDS RUPEES FOUR LACS THIRTY NINE THOU SAND TWO HUNDRED AND EIGHTY FIVE ONLY C.C. TO TD (COM) CE (COM) MSEDCK MUMBAI FOR C DINESH & CO. AUTHORIS ED SIGNATOR 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-4000 04 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. NO. ENERGY DESCRIPTION UNITS NET IMPORT 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 (ENERGY CONSUMPTION FROM GRID) 19 3 RKVAH CONSUMPTION FROM MSEDCL GRID 0 125509 THIS AGAIN IS A THIRD PARTY EVIDENCE OF A GOVERNMEN T DEPARTMENT WHICH CANNOT BE IGNORED WITHOUT BRINGING ANYTHING T O THE CONTRARY ON RECORD. THE SAME HAS NOT BEEN DONE BY T HE AO. 11 IN THE LIGHT OF THESE THIRD PARTY EVIDENCES / DO CUMENTS IN SUPPORT OF THE COMMISSIONING OF THE WIND MILL ON 31 ST MARCH 2006 WHICH REMAINED UNDISPUTED BY THE REVENU E TILL THE TIME OF HEARING OF THIS APPEAL BEFORE US WE HAVE N O OPTION BUT TO 22 HOLD THAT THE WIND MILL WAS COMMISSIONED ON 31 ST MARCH 2006 AND THE LEARNED CIT(A) HAS RIGHTLY ALLOWED THE CLAI M OF DEPRECIATION ON IT. WE ARE THEREFORE NOT INCLINED TO INTERFERE WITH THE ORDER OF THE LEARNED CIT(A). THE SAME IS H EREBY UPHELD. 12 IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 16-02-2012 SD/- SD/- (A MOHAN ALANKAMONY) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 16-02-2012 COPY OF THE ORDER FORWARDED TO: 1. M/S C DINESH & CO. 5/897 KALPAVRUKSHA GHIYA S HERI MAHIDHARPURA SURAT 2. THE ASST. COMMISSIONER OF INCOME-TAX CENTRAL CI RCLE-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