TaxTMI 
TaxTMI 
2026 (7) TMI 1727
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....owing substantial questions of law: "(1) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in confirming the order passed by the Assessing Officer reducing the claim of depreciation of Rs. 2,20,10,209/- on windmill from 80% to 40% as claimed by the assessee? (2) Whether on the facts and in the circumstances of the case, the order passed by the Income Tax Appellate Tribunsl is perverse to the record of the case?" 4. Brief facts of the case are as under: 4.1 The assessee is a non-banking company registered with the Reserve Bank of India and is engaged in the business of financing of vehicles. For the Assessment Year 2005-06, Return of Income declaring total loss of Rs. 1,39,92,809/- was filed by the assessee on 31.05.2005. 4.2 The case of the assessee was selected for scrutiny, and thereafter, Assessment Order dated 31.12.2007 was passed under Section 143(3) of the Act determining total income of Rs. 80,25,820/-on the ground that the assessee was not entitled to 80% depreciation on the windmill Project as claimed by the assessee because as per the Assessing Officer, windmill was installed after 30.....
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....Rajasthan and same was commissioned on 30 September 2004 as evident from Wind Project Commissioning certificate bearing Reference No RRVPNL/XEN-III/TCC/IV/BMR/D-622, dated 4th October 2004 isssued by executive engineer-III (TCC-IV) Barmer. According to that Commissioning certificate, it is certified that appellant has commissioned one number 1.25 MW suzlon make wind electric generator on 30th September, 2004 at Village Sodamada District Jaisalmer at location Number E269 in Rajasthan. It is further certified that this wind electric generator is interconnected to 132KV Jaisalmer GSS trhough 132 KV Mada substations via AmerSagar 132 KV bay. Appellant has also submitted monthly elecdtricity generation record for the month of Sepetember, 2004 where joint meter reading has been taken on 01/10/2004 where 3000 KWH has been delivered at common delivery point out of which appellant's windmill has exported 402 KWH in the month of September, 2004 and the same has been exported to Common Energy delivery point at 132 KV Substation at Sodamada, Jaisalmer. Appellant also produced copy of letter dated 29th September, 2004 from Superintending Engineer, Rajasthan Rajya Vidhut Prasaran Nigam Ltd, addr....
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.... date when performance acceptance test is completed. Till then it was agreed that power would be supplied free of cost by these units. Ld AO has stated that infact the windmill power project of the appellant has been commissioned only on 4th November, 2004. For this he received report prepared by ADIT(Investigation) regarding survey u/s 133A carried on in case of M/s Suzlon Energy Pvt. Ltd. on 5th August, 2006. According to this it has been observed by the survey party that either the certificate of commissioning of machine power are issued by the engineer of respective department and company in routine manner without keeping in view the actual date of commissioning of different machines or without physical verification of sites. A statement prepared by Shri Avinash Kumar who was machine operator and checked and verified by one Shri Rajiev Sharma who was operation and Maintenance manger of Suzlon showed that in that statement at Serial No. 185 the date of installation of windmill of appellant is mentioned at 5th November, 2004. On this isolated statement he restricted the claim of Depreciation at 40% instead of 80% as according to him the windmill become operational in the latter h....
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....achine is exworks Daman. Before us no material in the form of lorry receipts, octroi receipts or any other proof of transportation of goods, which would evidence that the machinery was indeed transported from Daman to the Village Soda, and had reached the site and commissioned, has been placed on record. Nor there is any findings of the CIT(A) to the aforesaid. Further, as per the invoice placed at page no.39, the insurance was to be arranged by the Suzlon Energy Ltd., upto the site. No evidence has been placed on record by the assessee to demonstrate that the insurance was indeed taken for transportation of the machinery. In view of the aforesaid facts, we are of the views that in the absence of any material on record which could prove that the machinery was in fact transported from Daman to the Village Soda and had reached village Soda before 30.9.2004 and was commissioned before 30.9.2004, the AO was justified in restricting the disallowance to 50% of the prescribed rate since the machinery was not installed before 30th September, 2014. Thus, this ground of the Revenue is allowed." 5. Learned Senior Advocate Mr. Tushar Hemani appearing with learned Ms. Vaibhavi Parikh for the....
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....actical aspect of transportation of the windmill which is admittedly transported on 25.09.2004 as per the copies of the invoice of M/s. Suzlon Energy Limited placed in the paper book. It was submitted that the it is humanly impossible to transport the windmill within four days from Daman to village Soda in Jaisalmer district and get the windmill project commissioned on or before 30.09.2004. 6.1 It was also pointed out that the Tribunal in such facts as emerging from the record has rightly held that no material in form of lorry receipts or transport receipts, octroi receipts etc., were placed on record by the assessee and there is no finding by the CIT(Appeal) on such aspects which goes to the root of the matter. It was therefore submitted that the Tribunal has taken into consideration the invoices placed on record which clearly also shows that the insurance was to be arranged by M/s.Suzlon Energy Limited up to the site, but no evidence was placed on record by the assessee to demonstrate that the insurance was indeed taken for transportation of the machinery. 6.2 It was therefore submitted that no interference is called for in view of the findings of fact recorded by the Tribu....