2019 (6) TMI 1222

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....as "the Tribunal") in ITA No.1436/Ahd/2015 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....

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....h, 2006, the assessee is very much entitled for claim 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 w....

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....d from 20.3.2006 to 15.4.2006 generated by TNEB for making 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 th....

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....ill has been commissioned satisfactorily on 20.03.2006. It was 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....