2013 (12) TMI 1451 - AT - Income Tax

Revision u/s 263 - Date of completion of wind mill erection whether September 30 2007 or September 1 2007 - Claim of depreciation - Held that - When the assessee erected the windmill and generated wind power it cannot be said that it is impossible for the assessee to generate electricity. In this case the assessee has generated the power from the windmill and the same was sold to the TNEB and the sale proceeds are being offered for taxation. Therefore under these facts and circumstances of the case it cannot be said that assessee has not erected the windmill on or before September 30 2007. - All the details in respect of the erection of the windmill submitted before the Assessing Officer including the certificate issued by the S.E. Udumalpet Elecy. Distn. Circle Udumalpet. The certificate issued by the S.E. was not challenged by the Department. Therefore in our view it is not a fit case to invoke section 263 of the Act - Tribunal directed the Assessing Officer to allow depreciation based on the certificate issued by the State Electricity Board. The hon ble High Court upheld the order of the Tribunal on the ground that when the Department has not questioned the certificate issued by the State Electricity Board the Tribunal was justified in directing the Assessing Officer to allow the depreciation. Keeping in view of the above facts we find that the order passed by the learned Commissioner of Income-tax is not sustainable. Therefore we set aside the order of the learned Commissioner of Income- tax - Decided in favour of assessee.

Summary

Issues:
1. Assessment under section 263 of the Income-tax Act based on depreciation claim for windmill business.

Analysis:
The appeal was filed against the order of the Commissioner of Income-tax-VIII, Chennai, for the assessment year 2008-09 under section 263 of the Income-tax Act. The assessee, engaged in the business of mineral water, ITC products, and power generation through windmill, initially reported a total income of &8377; 6,50,33,500, including capital gains and agricultural income. Subsequently, during scrutiny, the total income was determined at &8377; 6,58,89,953. The issue arose when the assessee claimed a loss from the windmill business, including depreciation on a new 600 KV windmill. The notice under section 263 highlighted discrepancies in the erection date of the windmill and the completion of necessary procedures as per TEDA guidelines. The Commissioner initiated proceedings under section 263 due to the alleged oversight by the Assessing Officer in restricting the depreciation claim. The assessee contended that the windmill was operational by September 30, 2007, supported by various documents and certificates from authorities.

The assessee provided detailed explanations and evidence to support the claim that the windmill was erected, commissioned, and generating electricity by September 30, 2007. The Assessing Officer had verified the documents, including invoices, inspection reports, and approvals, before finalizing the assessment under section 143(3) of the Act. The Departmental representative argued against the feasibility of completing the project within the timeframe claimed by the assessee, citing loan sanction dates and invoice details. However, the assessee's submission included certificates and approvals from relevant authorities, indicating the operational status of the windmill by the specified date.

After considering the arguments and evidence presented by both sides, the Tribunal concluded that the assessee had indeed erected and commissioned the windmill, generating electricity as claimed. The Tribunal emphasized the certificates issued by the State Electricity Board and the High Court's decision in a similar case, where depreciation was allowed based on such certificates. The Tribunal found no grounds to invoke section 263, as the Assessing Officer had duly verified the details provided by the assessee. Consequently, the order of the Commissioner of Income-tax was set aside, and the appeal filed by the assessee was allowed. The Tribunal ruled in favor of the assessee, highlighting the credibility of the provided documentation and the operational status of the windmill by the specified date.

In conclusion, the Tribunal's decision in this case revolved around the substantiation of the windmill's operational status by the assessee through certificates and approvals, despite challenges to the feasibility raised by the Departmental representative. The Tribunal's reliance on verified documentation and precedents led to the allowance of depreciation claimed by the assessee, ultimately setting aside the Commissioner's order under section 263 of the Income-tax Act.