TMI Blog2015 (12) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... rfere with the order of the ld.CIT(A), same is hereby upheld. - Decided against assessee. - I.T.A. No.2334/Ahd/2011 - - - Dated:- 15-10-2015 - SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER And SHRI KUL BHARAT, JUDICIAL MEMBER For The Appellant : -none- For The Respondent: Shri Dinesh Singh, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by the Assessee is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-VI, Ahmedabad [ CIT(A) in short] dated 08/07/2011 pertaining to Assessment Year (AY) 2008-09. The Assessee has raised the following grounds of appeal:- 1. The Leaned Commissioner of Income Tax (Appeals) has erred in facts and law by disallowing the depreciation claimed on Wind Mill to the extent of ₹ 32,00,000/-. 2. The Learned CIT() has erred in law and facts by disallowing the interest expenses of ₹ 37,866/- on account of non-deduction of TDS. 3. The Appellant reserves its rights to add, alter or omit any of the grounds of the appeal. 2. None appeared on behalf of the assessee despite the service of notice on various dates to the assessee. This appeal was originally fixed on 05/03/2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of any case laws, it is essential to analyse the facts of the case and unveil the entire transaction. After examining the details submitted by the assessee and the information gathered during the course of assessment proceedings, several important facts emerge, which needs to be minutely appreciated. They are summarized as under: I. The assessee has claimed to have purchased the wind mill on 28/3/2008 from India Windpower Limited. It is noticed that India Windpower Limited purchased six windmills from Indowind Energy Limited on 28/3/2008 and has sold one windmill to the assessee company on the same day itself ,i.e. 28/3/2008. II. The total cost of the wind mill is shown as ₹ 80 lakhs. The assessee company has made payment of only ₹ 20 lacs towards the wind mill. Whereas, the remaining amount of ₹ 58,33,660/- is shown as current liability and is outstanding at the end of the financial year as payment has not been made to India Wind Power Ltd. III. In order to carry out verification in this regard, letter u/s 133(6) dated 10/12/2010 was issued to India Windpower Limited, Ahmedabad. In compliance with the requirements of the said letter, it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it does not prove that there was indeed any power generation during the month of March, 2008, as claimed by the assessee. d. The sole basis of claiming the power generation and its credit by the assessee is the credit note issued by the concern India Windpower Ltd. In fact as per the report of Karnataka Power Transmission Corporation generation of power has never occurred to the said concern in the month of March 2008. The amount of ₹ 2090/- is only the credit note issued by the seller India Windpower Ltd and not any credit received from Karnataka Power Transmission Corporation, the agency responsible to generate electricity. 10. In view of the above facts, it is held that there is no effective transfer of windmill to the assessee. It is also held that there is no generation of electricity in the hands of the assessee and accordingly, no income has been accrued in its hands on account of power generation. The case laws referred by the assessee has no application in the case in view of the fact that , i) the assessee did not produce any reliable documentary evidence with respect to actual transfer of wind mill, ii) full payment has not been made and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Ltd, 249 ITR 214 held that unless the assessee become owner of the mill, it is not entitled to depreciation and development debate.---- It was held in the decision that affirming the decision of High Court that on the facts found, it was not possible to reach the conclusion that assessee had acquired Dominion over the mills in question . In this case also, the assessee company never acquired Dominion over windmills and therefore it is not entitled to depreciation----. In this case also, appellant could not obtain the permission from Karnataka Power transmission Corporation and therefore the transaction remained on paper only. Even appellant did not make full payment for the transaction which was required as per the terms of purchases by the seller. Since appellant did not obtain dominion over the windmill, it is not entitled to claim depreciation on the same. The generation of electricity by the windmill standing in the name of RPG cables Ltd cannot entitle appellant to claim depreciation. Since the decision of Honourable Supreme Court in the case of Mysore minerals Ltd is distinguished by the higher bench of the same court in the case of Tamil Nadu civil supplies Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reference, held that the assessee had not become the legal owner of the 13 mills in 1972 and upheld the denial of depreciation and development rebate [1997] (228 ITR 399). On appeal to the Hon'ble Supreme Court, it was held that affirming the decision of the High Court, that on the facts found, it was not possible to reach the conclusion that the assessee had acquired dominion over the mills in question . In the case before us also, the assessee-company never acquired dominion over the Wind Mills, therefore, it is not entitled to depreciation @ 100% as claimed in the assessment year 2001-02. With regard to contention of the assessee to exclude energy charges received amounting to ₹ 9,44,745/-, it is pertinent to note that this income has earned by the assessee in lieu of ₹ 2.40 crores, which was given to M/s. Pearl Energy Infrastructure.; Whatever may be the nature of the income, the real income is taxable in the hands of assessee. In view of this, the Learned Commissioner of Income Tax(Appeals) is legally and factually correct in upholding the action of A.O. disallowing the depreciation. Ground No. 1 of assessee's appeal in ITA No. 502/Ahd./2005 for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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