TMI Blog2015 (10) TMI 1759X X X X Extracts X X X X X X X X Extracts X X X X ..... d shows that the said land has been taken on lease by M/s. Pioneer Windcon Pvt. Ltd., for a period of 30 years. We also find that The Karnataka Renewable Energy Development Ltd., has approved the power project and there is an agreement between the Department of Energy of Government of Karnataka and the assessee for the installation and supply of electricity to the Government. These facts conclusively established the claim of the assessee for depreciation merely because the assessee is not the owner of the land and the land is a leasehold land would not itself disentitled the assessee with the claim of depreciation. The Ld. CIT(A) has rightly allowed the claim of depreciation and therefore we decline to interfere. - Decided in favour of assessee. Addition u/s. 69C - unexplained expenditure - Held that:- except for the admission of one of the Authorised Representative, there is no documentary evidence to suggest that the assessee has incurred cost outside the books of account. Merely on the basis of an unsubstantiated submission cannot lead to the addition u/s. 69C of the Act. The assessee has purchased the land for ₹ 58,500/- and therefore to this extent, the assessee is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mso-style-priority:59; mso-style-unhide:no; border:solid windowtext 1.0pt; mso-border-alt:solid windowtext .5pt; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-border-insideh:.5pt solid windowtext; mso-border-insidev:.5pt solid windowtext; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} <![endif]--> SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND RAM LAL NEGI, JUDICIAL MEMBER For The Assessee : Shri Nitin Waghmode For The Revenue : Shri Shekhar Gupta ORDER PER N.K. BILLAIYA, AM: ITA No. 4157/M/13 and C.O. No. 164/M/2014 are appeal and cross objection by the Revenue and the assessee against the very same order of the Ld. CIT(A)-24 Mumbai dated 28.2.2013 pertaining to A.Y. 2007-08. ITA No. 4158/M/2013 and C.O. No. 165/M/2014 are appeal and cross objection by the Revenue and the assessee against the very same order of the Ld. CIT(A)-24 Mumbai da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40% Depreciation claimed 82,09,792/- Closing WDV 1,23,14,688/- 4.3. During the course of the assessment proceedings, the assessee was asked to produce the complete details regarding the erection and commissioning of both the WEG. The assessee filed copies of commercial invoice No. SWL/WEG/055 DATED 31.02.2007 for the WEG in Tamil Nadu. It was explained that the amount of ₹ 90 lakhs paid to Southern Wind Farms Ltd. includes the erection and commissioning charges. The assessee also produced the Commercial Invoice No. PWPL/KA/02/06-07 dated 9.3.2007 in respect of WEG installed in Karnataka State. The assessee also supplied another commercial invoice No. ENC/97/06-07 dated 30.3.2007 for ₹ 2,24,480/- being the charges for Erection and Commissioning of the WEG in Karnataka State. After considering the facts and the submissions and the relevant documentary evidences supplied by the assessee, the AO found that the cost of land for WEG in Tamil Nadu was ₹ 58,500/- as per the photocopy of the Sale Deed furnished by the assessee. 4.4. The AO further observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the DDIT is perused wherein it is mentioned that there is a wind mill and erected by M/s Swani Corporation and the same was commissioned during the F.Y. 2006-07. Further, DDIT, Unit-II, Coimbatore has also obtained the certificates from the Tamilnadu Electricity Board with regard to Approval of WEG commissioning. As per this letter dt. 22/01/2007 it is clearly mentioned that the name of the promoter was Swani Corporation, location, capacity and the identification number is mentioned as WEG HTSC No. U135S. The assessee's AR during the hearing has drawn my attention to this approval letter that at point No.6 under condition to be fulfilled by the promoter it is mentioned as 6) It should be ensured before commissioning of the WEG that the WEG erected is a new machine and not a second hand machine by certifying the supporting documents. Similarly, letter dt. 21/02/2007 issued by Executive Engineer Operation and Maintenance Udumalpet to the Superintendent Engineer Udumalpet wherein it is also mentioned that M/s Swani Corporation, Mumbai have completed the 225 KV link line works for the energize ion of the WEG and further mentioned in paragraph No.3 of the above me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on record in the form of a Paper Book. 9. We have carefully perused the orders of the authorities below and with the assistance of the Ld. Counsel, we have also gone through the relevant documentary evidences brought on record. In our understanding of the facts, the AO has declined the claim of depreciation for the following reasons: i) There is no agreement for erection and commissioning. ii) There is inconsistency in respect of the cost of land iii) No break-up of individual machineries have been given in respect of the WEG. iv) There are no identification No. of the wind mill v) The assessee has not proved that the Wind Mill has been installed was a new Wind Mill. 9.1. At the very outset, we have to state that whether the installed Wind Mill was new or old would not affect the claim of depreciation as per the provisions of the law. Further we find that the report of the DDIT, Unit-II Coimbatore is self speaking report wherein the Revenue authorities have made a detailed investigation in respect of the erection of Wind Mill Energy in the State of Tamil Nadu. The excerpts of the said report has been incorporated by the Ld. CIT(A) in his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Authorised Representative wanted to convey was that the assessee has wrongly claimed the depreciation on the cost of land and in admitting so he has wrongly stated the cost of land as ₹ 3 lakhs. Otherthan this, the Revenue has no evidence to show that the land was purchased for ₹ 3 lakhs and ₹ 2,41,500/- has been paid in cash outside the books of account. 15. The Ld. DR strongly supported the findings of the Revenue authorities. 16. After giving a thoughtful consideration to the facts under consideration, we find that except for the admission of one of the Authorised Representative, there is no documentary evidence to suggest that the assessee has incurred cost outside the books of account. Merely on the basis of an unsubstantiated submission cannot lead to the addition u/s. 69C of the Act. The assessee has purchased the land for ₹ 58,500/- and therefore to this extent, the assessee is not entitled for the claim of depreciation. While deleting the addition of ₹ 2,41,500/-, we direct the AO to withdraw the depreciation on the amount of ₹ 58,500/-. Ground No. 1 is partly allowed. 17. Ground No. 2 relates to the claim of add ..... X X X X Extracts X X X X X X X X Extracts X X X X
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