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2015 (12) TMI 394 - ITAT AHMEDABAD

2015 (12) TMI 394 - ITAT AHMEDABAD - TMI - Disallowance of depreciation claimed on Wind Mill - Held that:- Since the facts of the present case are identical to the facts as were before the Coordinate Bench in the case of Besto Tradelink Pvt.Ltd.(2009 (10) TMI 896 - ITAT AHMEDABAD), therefore taking a consistent view, we do not see any reason to interfere with the order of the ld.CIT(A) upholding the action of A.O. disallowing the depreciation as the assessee-company never acquired dominion over .....

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T(TDS) as required under the Act. Since the assessee failed to furnish the requisite Form 15H, therefore, we do not see any reason to interfere 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 i .....

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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. Vide letter dated 03/03/2015, the assessee sought adjournment on the ground that the assessee is in the process of collecting some additional data. On the request of the assessee, the appeal was fixed for hearing on .....

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or hearing, neither any person appeared on behalf of the appellant nor any application seeking adjournment has been filed. From the record, it is evident that the assessee has been given sufficient opportunity to represent its case. Therefore, we proceed to decide the appeal in the absence of the appellant-assessee on the basis of material available on record. 3. Briefly stated facts are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s.143(3) of the Inco .....

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nd submitted that the issue is squarely covered in favour of the Revenue by the decision of the Coordinate Bench (ITAT B Bench Ahmedabad) in the case of Besto Tradelink Pvt.Ltd. vs. Asst.CIT in ITA No.502/Ahd/2005 for AY 2001-02, dated 23/10/2009. He drew our attention towards assessment order at para Nos.9 & 10 and also at para-3.3 of the appellate order. 5. Having heard the ld.Sr.DR and perusing the material available on record, we find that the AO in para Nos.9 & 10 has given a findin .....

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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 S .....

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ind mills were sold by it, one of which is sold to the assessee company. In support, it has submitted a copy of the invoice with respect to purchase of wind mill by it from Indowind Energy Limited. As regards, the sale of windmill by it to the assessee, the said party has submitted a copy of invoice wherein, the assessee's name appears as consignee of the windmill. On verifying the first invoice of purchase by India Wind Power Limited, it is noticed that there is a clear mention therein unde .....

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end of the financial year, outstanding liabilities towards purchase of wind mill is ₹ 58,33,660/-. Therefore, effectively as per the terms and conditions of the transaction, the ownership has not been effectively transferred to the assessee and any income out of generation of the windmill is to be treated as income in the hands of the seller of the windmill, Indowind Energy Limited, in this case. Further, In support of generation of electricity, the assessee has submitted copy of Karnatak .....

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, 6 in number, of capacity of 320 KW. There is no evidence on record to the fact that one of the wind mills mentioned in the report pertains to the assessee as claimed by it. c. The report pertains to the month of April 2008 and 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 fa .....

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ere 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 iii) there is no credible evidence of generation of power from the wind mill as claimed by it .....

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3.3 I have considered the facts of the case; assessment order and appellant's submission. The basic fact is that appellant claimed to have purchased a windmill from a company who in turn purchased six windmills from another company who purchased the same from RPG cables Ltd who was the power producer as per records of Karnataka Power transmission Corporation. In the records of Karnataka Power transmission Corporation, six windmills claimed to have been purchased by India wind power Ltd and i .....

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for one windmill. Apart from this there is no documentary or other evidence to prove the ownership and Dominion or control of the windmill registered in the name of RPG cables Ltd. Facts of the case has been discussed in detail by the assessing officer. In the similar facts, jurisdictional 1TAT in the case of Besto trade links private Ltd, IT number 502/AHD/2005 dated 23-10-2009 held as under- "It is agreed by both the parties that windmill in question cannot be transferred unless the permi .....

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s 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 .....

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the decision of jurisdictional tribunal, this decision does not help the appellant. Considering the facts of the case I'm of the clear view that appellant did not acquire Dominion or control over the windmill and it was not a legal owner of the same and accordingly not entitled to claim depreciation. The claim is accordingly rejected by the AO and hence the disallowance is confirmed. 5.2. From the above finding of the ld.CIT(A), it is evident that the ld.CIT(A) has followed the decision of t .....

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MOU) assured the second party (M/s. Pearl Energy & Infrastructure) to arrange for necessary transfer within a period of 90 days from the date of submission of application to the concerned authorities. Admittedly, no permission was granted. It is agreed by both the parties that windmill in question cannot be transferred unless the permission of appropriate authority is obtained. Admittedly in this case, no permission was given. In these circumstances, in our considered opinion, the said MOU .....

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ation thereto were executed in 1978. The assessee claimed depreciation and development rebate in relation to the 13 mills for the assessment years 1973-74 and 1974-75. The ITO rejected the claim on the ground that the assessee had not become the owner in law. The first appellate authority and the Tribunal upheld the order of A.O. The Hon'ble High Court, on 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 deve .....

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tion 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 depreciati .....

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