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TMI Blog2019 (6) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 by proposing the following two questions, stated to be substantial questions of law:- "(A) Whether the Appellate Tribunal has erred in law and on facts in holding that re-opening was invalid and there is no need to go into the merit of the case without appreciating the fact that there was no change of opinion as the claim of the assessee was incorrect and not allowable and there was escapement of income? (B) Whether the Appellate Tribunal has erred in law and on facts in deleting the disallowance of Rs. 3,38,32,680/- in respect of depreciation on Wind Mill without appreciating the fact that the assessee has raised the first Bill No.15.04.2006 which indicated that the Wind Mill did not start generation before 31.03.2006?" 2. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of depreciation. It was submitted that the decision of the Tribunal is erroneous as the assessee had raised the first bill on 15.4.2006 which indicates that the wind mill did not start generating electricity before 31.3.2006. The assessee filed a letter from the Superintending Engineer, Tirunelveli, Electricity Distribution Circle, Tirunelveli-11 wherein it was mentioned that 852 units of power was generated till 6.4.2006. It was contended that the Assessing Officer has found that in the said letter, it is nowhere mentioned that there was production of any units till 31.3.2006. It was submitted that the assessee had failed to furnish any evidence in support of its case that electricity was generated prior to 31.3.2006 and that in absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the first bill. It was contended that the Assessing Officer having scrutinised this issue at the time of regular assessment, the reopening was based on a mere change of opinion. The Assessing officer without dealing with the submissions of the assessee has observed that the assessee has not produced any evidence in support of electricity generated upto 31.3.2006 and disallowed the claim of depreciation of Rs. 3,38,32,680/- and added it to the total income. In assessee's appeal, the Commissioner (Appeals) has found that the assessee had furnished various evidences to show that both the wind mills were commissioned on 20.3.2006 and started producing power by 31.3.2006 and set aside the disallowance. 5. Insofar as the validity of the reo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained that the initial reading is 20.03.2006 and the date of final reading is 15.04.2006. It was further explained that the first bill has covered power generation period from 20.03.2006 to 15.04.2006 and satisfactorily proved that Wind Power Mill has commissioned on 20.03.2006 and has started generation of power from 20.03.2006 onward. 6. These demonstrating evidences were considered by the Assessing Officer at the time of the original assessment proceedings and allowed the claim of depreciation for the year under consideration." 6. On the basis of such findings recorded by it, the Tribunal held that the reopening of assessment on the false premise that the wind power generation plant was not in operation during the year under co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted out that the Tribunal has placed reliance upon any irrelevant material or that any relevant material has been ignored. Under the circumstances, the conclusion arrived at by the Tribunal being based on concurrent findings of fact upon appreciation of the material on record, no infirmity can be found in the finding recorded by the Tribunal that the reopening of assessment was invalid. 9. Insofar as the claim for depreciation is concerned, since the matter stood concluded by the order passed by the Assessing Officer during the course of scrutiny assessment, the question of going into the issue once again did not arise. In any case both, the Tribunal as well as the Commissioner (Appeals), have found that the relevant evidence was produce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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