TMI Blog2013 (1) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... In the absence of any material placed before us by the Department to show that the assessee has not filed all these details before the Assessing Officer at the stage of completion of assessment under section 143(3) of the Act, it can be said that the Assessing Officer has examined all these documents and came to the conclusion that the windmill has been erected and commenced generation of power on September 29, 2006 and, therefore, the claim of the assessee is in accordance with the provisions of the Act. In the circumstances, it can be said that the Assessing Officer has taken one of the two views possible in allowing the claim for depreciation on windmill and in such circumstances, it cannot be said that the order passed by the Assessing Officer is erroneous and prejudicial to the interests of the Revenue as held by the hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. CIT [2000 (2) TMI 10 - SUPREME Court ] . Thus revision order quashed - Decided in favour of assessee. - ITA No. 942/Mds/2012 - - - Dated:- 30-1-2013 - N.S. SAINI AND SHRI CHALLA NAGENDRA PRASAD, JJ. For the Appellant : Shri G. Baskar, Advocate For the Respondent : Mr. TN Betgeri, JC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from business at ₹ 90,43,770. Subsequently, notice under section 263 of the Act was issued by the Commissioner of Income-tax stating that the windmill erected by the assessee commenced generation of power on or after October 15, 2006 and not on September 29, 2006 and, therefore, the Assessing Officer allowed depreciation to the extent of 80 per cent. on the windmill without restricting the same to 40 per cent. while completing the assessment under section 143(3) of the Act. Thus, the Commissioner of Income-tax opined that the assessment made under section 143(3) of the Act was erroneous and prejudicial to the interests of the Revenue. 3. The assessee submitted its reply which is placed at pages 32 to 34 of the paper book filed, stating that he has mobilised funds by himself, purchased windmill and the windmill was erected and commissioned after due inspection by the Chief Inspector of the Government of Tamilnadu. After Inspection, the authorities of the Tamil Nadu Electricity Board (TNEB for short) and TNEB accorded approval on September 28, 2006 for supply of electricity to TNEB. The TNEB purchased electricity generated from the windmill and the sale proceeds are offered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee for depreciation at 80 per cent. after satisfying that the windmill was erected and commenced generation of power on September 29, 2006. Counsel for the assessee submits that the assessee has furnished all these documents before the Assessing Officer and copies of such documents are also furnished before us which are in the paper book at pages 1 to 26. 6. Counsel for the assessee submits that assuming for a moment that there are two views possible and one of the views was taken by the Assessing Officer on examining the facts, the order passed by the Assessing Officer cannot be said to be erroneous or prejudicial to the interests of the Revenue. Counsel for the assessee relied on the decision of the hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83 (SC). 7. Counsel for the assessee further submits that the Commissioner of Income-tax went wrong in setting aside the assessment and directed the Assessing Officer to allow depreciation only at 40 per cent. He submits that the Commissioner of Income-tax was of the view that since the bank has sanctioned loan on October 3, 2006 and disbursed the loan amount after that date, the windm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndmill, may be for the reason that he was satisfied that the assessee is eligible for depreciation and, therefore, since he has not disallowed any part of depreciation, there was no need for any discussion in the assessment order. From page 1 of the paper book, which is ledger account of the windmill in the books of the assessee we could see that the assessee has made initial payment of ₹ 13.50 lakhs to the supplier and the rest of the payments were made by the Indian Overseas Bank to the supplier directly from October 6, 2006 onwards. The TNEB has issued a letter dated September 30, 2006 stating that generation of power by the windmill has been effected on September 29, 2006. The Department has not disputed the certificate issued by the TNEB that the windmill effected supply on September 29, 2006. In the absence of any material placed before us by the Department to show that the assessee has not filed all these details before the Assessing Officer at the stage of completion of assessment under section 143(3) of the Act, it can be said that the Assessing Officer has examined all these documents and came to the conclusion that the windmill has been erected and commenced genera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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