ACIT, CHENNAI V. M/s. Vishranthi Realty Services, CHENNAI

ITA 1441/CHNY/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7815 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 08-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 03-07-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNEEL VERMA IRS
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Depreciation; Opportunity of being heard; Additional evidence

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . ! ' , #'$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO.1441/MDS/2012 # % &% / ASSESSMENT YEAR : 2008-09 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE XV, CHENNAI 600 034. VS. M/S. VISHRANTHI REALTY SERVICES, NO.7 (OLD NO.4) IST CROSS STREET, SEETHAMMAL COLONY EXT. TEYNAMPET, CHENNAI 600 018. [PAN AAFPV 3879F ] ( / APPELLANT) ( /RESPONDENT) '( ) * / APPELLANT BY : SHRI. SUNEEL VERMA, IRS, CIT +,'( ) * /RESPONDENT BY : SHRI. R. VIJAYARAGHAVAN, ADVOCATE ! ) - / DATE OF HEARING : 08.12.2015 ./& ) - / DATE OF PRONOUNCEMENT : 04.03.2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEAL FILED BY THE REVENUE IS DIRECTED AG AINST ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XII, CH ENNAI IN ITA NO.197/2010-11, DT 30.03.2012 FOR THE ASSESSMENT YE AR 2008-09 PASSED U/S.143(3) AND 250 OF THE INCOME TAX ACT, 1 961 (HEREIN AFTER REFERRED TO AS THE ACT). ITA NO. 1441/MDS/2012 :- 2 -: 2. THE REVENUE HAS RAISED TWO SUBSTANTIVE GROUNDS (I) COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELET ING THE ADDITION OF ASSIGNMENT FEE FROM HTMT GLOBAL SOLUTIONS P. LTD BASED ON FRESH EVIDENCE FILED BY THE ASSESSEE WEREAS THE ASSESSING OFFICER WAS DENIED OPPORTUNITY UNDER RULE 46A AND WAS SUBMITTE D FOR THE FIRST TIME IN APPELLATE PROCEEDINGS. (II) THE COMMISSIONE R OF INCOME TAX (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEPRECATION @100% ON WIND TURBINE GENERATORS (WTG) AS AGAINST 5 0% RELYING ON THE EVIDENCE FILED BY THE ASSESSEE AND ASSESSING OFFICER WAS DENIED OPPORTUNITY TO VERIFY AND EXAMINE THE EVIDENCE. 3. THE BRIEF FACTS OF THE CASE, THE ASSESSEE IS A REGI STERED PARTNERSHIP FIRM IS IN THE BUSINESS OF CONSULTANCY SERVICES FILED RETURN OF INCOME ON 31.12.2008 WITH TOTAL INCOME OF A4,97, 51,952/- AND THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE AC T. SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY AND DUE TO CHANG E OF JURISDICTION FRESH NOTICE WAS ISSUED. IN COMPLIANCE TO NOTICE, THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED AND FILED P OWER OF ATTORNEY AND FILED DETAILS FROM TIME TO TIME AND PRODUCED B OOKS OF ACCOUNTS, BANK STATEMENTS, AND WRITTEN SUBMISSIONS AND T HE LD. ASSESSING OFFICER COMPLETED ASSESSMENT. THE ASSESSEE IS PRO VIDING PROJECT MANAGEMENT CONSULTANCY SERVICES AND AS PER TAX AUD IT REPORT ITA NO. 1441/MDS/2012 :- 3 -: U/S.44AB OF THE ACT THE ASSESSEE IS FOLLOWING MERC ANTILE SYSTEM OF ACCOUNTING. THE MAIN SOURCE OF INCOME BEING ASSIGN MENT FEE RECEIVED FROM THREE PARTIES ON ASSIGNING OF ITS SHARE IN THE IT PARK WERE ASSESSEE FIRM HAS ENTERED INTO BUILDERS AGREEMENT O N 14.04.2006 FOR TWO FLOORS IN THE IT PARK WITH THE BUILDER M/S. VIS HRANTHI HOMES PRIVATE LTD (VHPL) A GROUP CONCERN AND ALSO RECEIVE INCOME FROM SALE OF ELECTRICITY GENERATED THROUGH WTG. THE ISSUE IN DISPUTE BEING ASSIGNMENT FEE OF HTMT GLOBAL SOLUTIONS P. LTD. TH E ASSESSEE FIRM ENTERED INTO REAL ESTATE TRANSACTION WITH M/S. VISH RANTHI HOMES PRIVATE LIMITED (BUILDER) WHICH HAS ENTERED INTO AN JOINT V ENTURE AGREEMENT ON 29.07.2004 WITH M/S. JAYANT PACKAGING P. LTD OWNER OF THE LAND AT NANDAMBAKKAM, CHENNAI TO DEVELOP AND CONSTRUCT A CO MMERCIAL BUILDING WITH A AREA OF 23448 SQ.M IN THE RATIO OF 35:65 WHEREAS THE ASSESSEE FIRM HAS ENTERED AN AGREEMENT TO SHARE BUILT-UP AREA OF THE DEVELOPER (VHPL) ON 14.06.2006 FOR A CONSIDERAT ION OF A19.3 CRORES. THE ASSESSEE AS A ASSIGNOR ENTERED INTO NOMINATION/ASSIGNMENT AGREEMENT WITH FOUR PARTIES O N 23.08.2007 AND 29.10.2007. THE ASSIGNEE IS ENTITLED FOR A AREA AS PER THE SCHEDULE OF THE AGREEMENT ON PAYMENT OF CONSIDERATION AGREED WITH ASSESSEE FIRM. THE LD. ASSESSING OFFICER ON PERUSAL OF THE PROFIT AND LOSS ACCOUNT FOUND THAT ASSESSEE HAS OFFERED INCOME OF A SSIGNMENT FEES FROM THREE ASSIGNEES AGGREGATING TO A13,62,31,944/ - AND CLAIMED ITA NO. 1441/MDS/2012 :- 4 -: DEPRECIATION AND OTHER EXPENDITURE. THE DISPUTE ARI SE IN RESPECT OF FOURTH ASSIGNEE FEE A14,74,78,764/- OF M/S. HTMT G LOBAL SOLUTIONS PRIVATE LIMITED WAS NOT OFFERED TO TAX IN THE RELEV ANT ASSESSMENT YEAR BY THE FIRM. THE LD. AUTHORISED REPRESENTATIVE FIL ED EXPLANATIONS IN RESPECT OF FOURTH ASSIGNEE WITH DETAILS OF EXECUT ION OF ESCROW TRIPARTIE AGREEMENT ENTERED BETWEEN VISHRANTHI REA LTY SERVICES, VISHRANTHI HOMES PRIVATE LIMITED AND HTMT GLOBAL SO LUTIONS P. LTD AND AS PER ESCROW AGREEMENT, MONEY ADVANCED BY THE HTMT GLOBAL WAS CREDITED TO ESCROW ACCOUNT AND NOT UTILIZED BY THE ASSESSEE FIRM AS THE AMOUNT ADVANCED BY THE FOURTH ASSIGNEE IS M ATERIALIZED UPON THE TERMS OF ESCROW AGREEMENT AND IF ESCROW AGREEM ENT IS CANCELLED, THE TRANSACTIONS ENTERED WOULD CEASE TO TAKE EFFECT UNLESS TERMS ARE COMPLIED BEFORE SAID DATE. THE MAIN ISSUE BEING THE ASSESSEE FIRM HAS NOT OFFERED THE ASSIGNMENT FEES OF THE FOURTH ASSIG NEE IN THE PROFIT AND LOSS ACCOUNT ON THE PRETEXT THAT COMPANY INSISTED FOR BANK GUARANTEE AND THE FUNDS ARE KEPT IN ESCROW ACCOUNT. THE LD. ASSESSING OFFICER ON THE BASIS OF TRIPARTITE AGREEMENT BETWEEN THREE PARTIES THE ALLOTMENT RIGHTS SHALL BE TRANSFERRED TO THE ASSIGN EE ON ACCRUAL BASIS AND INCOME SHOULD BE OFFERED TO TAX AND RELIED ON THE TRIBUNAL DECISION AS THE ASSIGNMENT FEE RECEIVED BY THE ASSE SSEE IS DEPOSITED IN THE ESCROW ACCOUNT AND PERFORMANCE GUARANTEE PROVID ED BY THE ASSESSEE DUE TO SOME UNCERTAINTY OF COMPLETION OF THE PROJECT ITA NO. 1441/MDS/2012 :- 5 -: DETERMINED. BUT THE ASSESSING OFFICER CONSIDERED V ESTED RIGHT ON TRANSFER OF A16.25 CRORES THROUGH RTGS DEPOSITED IN THE ESCROW ACCOUNT ON 14.11.2007. THE ASSESSING OFFICER CALL ED FOR THE ESCROW ACCOUNT AND FOUND A7,40,88,005/- AND A8,84,87,260/- WAS TRANSFERRED TO ACCOUNT NO.CD1830 AND THE AMOUNT HAS BEEN WITHDR AWN BY THE ASSESSEE FIRM. THE LD. ASSESSING OFFICER ALSO EXAM INED THE LEDGER ACCOUNTS AND FOUND A8,84,84,260/- WAS SHOWN AS LIA BILITY TOWARDS HTMT GLOBAL RECEIVED IN ESCROW ACCOUNT. ON VERIFYI NG THE SOURCE AND USAGE OF FUNDS, THE LD. ASSESSING OFFICER IS OF THE OPINION THAT THE AMOUNTS WERE UTILIZED BY THE ASSESSEE FIRM AND THE ISSUE OF FURNISHING BANK GUARANTEE FOR SPECIFIC PERFORMANCE IS NO WAY C ONNECTED TO THE OF MONEY OR IN ACCORDANCE WITH THE AGREEMENT. THE L D. AUTHORISED REPRESENTATIVE EXPLAINED THAT INCOME OF THE FOURT H ASSIGNEE WILL BE ADMITTED ONLY AFTER COMPLETION OF THE PROJECT AND R ELIED ON THE JURISDICTIONAL DECISION OF HIGH COURT BUT THE ASSES SING OFFICER HAD DISTINGUISHED THE DECISIONS AS THEY ARE NOT APPLICA BLE IN RESPECT OF CONSTRUCTION BUSINESS AND CONCEPT OF RETENTION MON EY IS NOT APPLICABLE. WITH THESE OBSERVATIONS, THE ASSESSING OFFICER SUSPECTED THAT THE FIRM HAS MADE A CAMOUFLAGED ARRANGEMENT T O WITHDRAW THE MONEY AND UTILIZED FOR PERSONAL GAINS OF PARTNERS W HO ARE ALSO DIRECTORS OF VHPL LTD. THE ASSESSING OFFICER PRESU MED ARRANGEMENT AS COLORABLE DEVICE TO AVOID TAX LIABILITY AND AFTE R DETAILED AND ITA NO. 1441/MDS/2012 :- 6 -: ELABORATE FINDINGS EVEN THOUGH INCOME WAS OFFERED I N SUBSEQUENT ASSESSMENT YEARS AND SPREAD BETWEEN TWO ASSESSMENT YEARS DUE TO PRE-CONDITIONS, THE ASSIGNMENT FEES IS ASSESSED ON ACCRUAL BASIS AS ON THE DATE OF ENTERING INTO AGREEMENT AND WERE ASS ESSEE FIRM HAS TRANSFERRED THE RIGHTS. THE ASSIGNMENT FEES OF HTMT GLOBAL SOLUTIONS TRANSFERRED TO ESCROW ACCOUNT A16,25,75,265/- WAS W ITHDRAWN AND UTILIZED BY THE ASSESSEE FIRM. THE ASSESSING OFFIC ER WANTED TO TAX THE AMOUNT WHICH WAS OBJECTED BY THE LD. AUTHORISED REP RESENTATIVE AS A7,40,88,005/- WAS TRANSFERRED TO VHPL BUILDERS AND A8,84,87,260/- WAS RECEIVED BY THE FIRM ON 4.12.2007 AND THE BALAN CE AMOUNT WAS RECEIVED IN THE NEXT YEAR AND EXPLAINED THE TRANSFE R OF FUNDS AND TRANSFER OF RIGHTS. BUT THE LD. ASSESSING OFFICER RELIED ON THE AGREEMENT ENTERED WITH THE FOURTH ASSIGNEE ON PAR W ITH THREE ASSIGNEES AND TAXED ASSIGNMENT FEES FROM HTMT GLOBA L SOLUTIONS IN THE FINANCIAL YEAR 2007-08 A14,74,78,764/-. AGGRIE VED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 4. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED REPRESENTATIVE REITERATED HIS SUBMISSIONS MADE BEFO RE ASSESSING OFFICER IN ASSESSMENT PROCEEDINGS WITH LETTERS, AGR EEMENTS AND SUBMISSIONS ON VARIOUS DATES. THE DISPUTED ISSUE B EING OUT OF INCOME ITA NO. 1441/MDS/2012 :- 7 -: OF FOUR ASSIGNEES, FEE RECEIVED FROM THREE ASSIGNE ES ARE CREDITED TO THE PROFIT AND LOSS ACCOUNT WHEREAS IN RESPECT OF F OURTH ASSIGNEE BEING HTMT GLOBAL SOLUTIONS PRIVATE LIMITED WAS NOT RECO GNIZED IN THE FINANCIAL YEAR 2007-08 AND WAS OFFERED IN THE NEXT ASSESSMENT YEAR 2009-2010 AS BASIC ISSUE BEING TRANSACTION WAS SUBJ ECT TO EXECUTION OF ESCROW TRIPARTIE AGREEMENT BETWEEN THREE PARTIES FOR ALLOTMENT WHICH DOES NOT GIVE RISE TO INCOME IN THE FINANCIA L YEAR 2007-08. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED DETAILED EX PLANATIONS BY LETTER DATED 10.10.2010 REFERRED AT PARA NO.3 OF PAGE NO. 4 OF COMMISSIONER OF INCOME TAX (APPEALS) AS UNDER:- THE ASSESSEE BEFORE THE UNDERSIGNED, VIDE ITS SUBMISSIONS DATED 10.10.2010 STATED THAT THE ASSIGNMENT OF RIGHTS TO M/S. HTMT GLOBAL SOLUTIONS P LTD WAS ONLY A CONDITIONAL AGREEMENT. IN THIS AGREEMENT IT WAS CLEARLY STATED THAT THE ASSIGNMENT IS SUBJECT TO THE ASSESSEE/ VHPL OBTAINING NECESSARY PLAN APPROVALS ETC. FROM THE COMPETENT AUTHORITIES FOR THE CONSTRUCTION OF THE SAID PROPERTY. FURTHER, AS THE AMOUNT WAS DEPOSITED BY HTMT GLOBAL SOLUTIONS LTD IN AN ESCROW ACCOUNT WITH THE BANK, IN CASE OF ANY FAILURE TO GET THE PROJECT THROUGH (I.E. FAILURE TO OBTAIN NECESSARY APPROVAL), THE BUYER (I.E. HTMT GLOBAL SOLUTIONS P LTD) CAN WITHDRAW THE AMOUNT FROM THE BANK (FROM THE ESCROW ACCOUNT) STRAIGHT AWAY AND THE ASSESSEE HAS NO RIGHT TO STOP IT. THE ASSESSEE ALSO EXPLAINED THAT THESE CONDITIONS WERE NOT INSISTED BY THE FIRST MENTIONED THREE BUYERS AND THE AMOUNTS ARE DIRECTLY RECEIVED. HENCE THE FIRST THREE ASSIGNMENTS HAVE BECOME FINAL AND ACCORDINGLY THE SAID RECEIPTS FROM THE FIRST THREE PARTIES HAVE BEEN RECOGNIZED AS INCOME ITA NO. 1441/MDS/2012 :- 8 -: DURING THE FINANCIAL YEAR 2007-08. S UBSEQUENTLY, THE ASSESSEE J VHPL OBTAINED THE NECESSARY PLAN PERMITS FROM CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY WAS OBTAINED ON 01.08.2008. BASED ON WHICH, THE BUILDING LICENSE FEE WAS PAID ON 25.08.2008. THEREFORE, THE ASSIGNMENT OF RIGHTS IN THE PROPERTY TO HTMT GLOBAL SOLUTIONS P LTD BECOMES FINAL ONLY ON OBTAINING THE PLANNING PERMIT ON 01.08.2008 AND HENCE THE SAID CONSIDERATION HAS BEEN RECOGNIZED AS INCOME DURING THE FINANCIAL YEAR 2008-09 RELEVANT TO THE AY 2009-10 AND OFFERED TO TAX ACCORDINGLY. THE ASSESSEE ALSO EXPLAINED THAT, AS PER THE AGREEMENT WITH HTMT GLOBAL SOLUTIONS P LTD, PART. OF THE AMOUNT WAS TO BE RECEIVED ONLY AFTER THE ASSESSEE/VHPL OBTAINING THE NECESSARY APPROVALS AND ACCORDINGLY A SUM OF RS.5.90 CRORES WAS RECEIVED ONLY ON 29.08.2008 I.E. AFTER OBTAINING THE NECESSARY APPROVALS. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ON PER USAL OF GROUND AND SUBMISSIONS BY LETTER DATED 10.10.2010 FOUND TH E AGREEMENT WAS CONDITIONAL AND THE ASSIGNMENT IS SUBJECTED TO ASSE SSEE FIRM AND VHPL OBTAINING NECESSARY APPROVALS AND HTML GLOBAL SOLUT IONS PVT. LTD IS AT LIBERTY TO WITHDRAW THE AMOUNT, IF AGREEMENT IS CA NCELLED AND THE CONDITIONS ARE NOT FULFILLED WITHIN SPECIFIED PERIO D. THE LD. AUTHORISED REPRESENTATIVE FILED ELABORATE SUBMISSIONS ON THE FINDINGS OF THE ASSESSING OFFICER FROM PAGE NOS.5 TO 11 OF CIT ORDE R WITH DETAILS ON THE TERMS OF AGREEMENT DULY SUPPORTED BY THE JUDIC IAL DECISIONS AND ACCOUNTING TREATMENT AND DEEMING PROVISIONS. THE LD . COMMISSIONER OF INCOME TAX (APPEALS) FURTHER OBSERVED FROM THE EVID ENCE FILED WHICH ITA NO. 1441/MDS/2012 :- 9 -: SHOWS THAT THE AGREEMENT ENTERED BY THE ASSESSEE FI RM WITH THREE ASSIGNEE IS DIFFERENT FROM FOURTH ASSIGNEE (HTML) I N RESPECT OF ASSIGNMENT RIGHTS IN THE COMMERCIAL COMPLEX. THE A SSESSING OFFICER FOUND THAT ASSESSEE FIRM IS FOLLOWING MERCANTILE SY STEM AND ADVANCE RECEIVED FROM 4 TH ASSIGNEE SHOULD B OFFERED TO TAX IN THE SAME YEAR. THE JOINT DEVELOPMENT AGREEMENT, BUILDER AGREEMENT AND ASSIGNMENT AGREEMENTS WERE ENTERED ON 29.07.2004, 14.04.2006 A ND 23.08.2007 AND 29.10.2007 AND THE PROJECT HAS NOT COMMENCED O N THE DATE OF SIGNING OF THE ASSIGNMENT AGREEMENTS AND THE PROJE CT PLANS ARE YET TO BE APPROVED AS ON THE DATE OF 29.10.2007. FURTHER AT THE TIME OF ENTERING INTO AGREEMENTS WITH FOUR ASSIGNEES THE P ROJECT WAS NOT APPROVED BY THE CONCERNED AUTHORITIES AND DUE TO RE ASONS OR PROBABILITIES OR POSSIBILITIES THE PROJECT MAY OR MAY NOT MATERIALIZE AND THE L.D AUTHORISED REPRESENTATIVE EXPLAINED THA T THERE ARE DIFFERENCES IN TERMS AND CONDITIONS ENTERED WITH T HREE ASSIGNEES AND THE FOURTH ASSIGNEE (HTML GLOBAL SOLUTIONS PVT. LTD ) IN RESPECT OF FIRST THREE ASSIGNEES ASSIGNMENT IS FULL FLEDGED AND THER E IS NO PRECONDITIONS AND FEE WAS OFFERED TO TAX. WHERE IN RESPECT OF FOURTH ASSIGNEE, THE AGREEMENT ENTERED IS TOTALLY CONDITIO NAL AND IS SUBJECT TO ASSESSEE /BUILDER OBTAINING NECESSARY APPROVALS FOR THE PROJECT. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FOUND TAX ATION RATES APPLICABLE FOR THE ASSESSMENT YEAR 2008-09 AND 2009 -2010 ARE SAME ITA NO. 1441/MDS/2012 :- 10 -: AND THERE IS NO LOSS OF REVENUE TO THE DEPARTMENT I F INCOME IS OFFERED IN NEXT YEAR. THE ASSIGNMENT TRANSACTION WITH HTML GLOBAL SOLUTIONS PVT. LTD IS TOTALLY CONDITIONAL AND DIFFERENT FROM THREE ASSIGNEES. THE ASSESSEE HAS NOT RECEIVED ANY MONEY FROM THE ASSIGN EE INSTEAD RECEIVED THE CONSIDERATION FROM ESCROW ACCOUNT IN THE BANK ON FURNISHING OF 100% BANK GUARANTEE AS PER REQUISITE STIPULATED CONDITIONS OF THE AGREEMENT. THE LD. AUTHORISED REP RESENTATIVE SUBMITTED THAT THE ASSESSEE FIRM HAS OBTAINED NECES SARY PERMISSIONS FROM THE CONCERNED AUTHORITIES ON 01.08.2008. BASED ON THIS PERMISSIONS, ASSIGNMENT RIGHTS CRYSTALLIZED IN FAV OUR OF HTML GLOBAL SOLUTIONS PVT. LTD AND RECOGNIZED AS CONSIDERATIO N IN THE FINANCIAL YEAR 2008-09 AND SUBSEQUENT TO THE OBTAINING OF PER MISSION BALANCE CONSIDERATION WAS PAID BY HTML GLOBAL SOLUTIONS PVT . LTD ON 29.08.2008 AND 31.12.2008 TO THE ASSESSEE FIRM. WH EREAS ASSESSEE UPON RECEIPT OF THE ASSIGNMENT FEES OFFERED ENTIRE INCOME IN THE ASSESSMENT YEAR 2009-2010. THE ASSESSEE HAS BONAFI DE EVIDENCE FOR NOT RECOGNIZING THE INCOME AS PER THE TERMS AND CON DITIONS AND THE ASSESSING OFFICER ACTION IN CONSIDERING INCOME OF T HE FOURTH ASSIGNEE FOR THE ASSESSMENT YEAR 2008-2009 IS NOT BAD IN LAW AND DIRECTED THE ASSESSING OFFICER TO DELETE THE ADDITION. AGGRIEVE D BY THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE A SSAILED AN APPEAL BEFORE THE TRIBUNAL. ITA NO. 1441/MDS/2012 :- 11 -: 5. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE ARG UED VEHEMENTLY ON THE FINDINGS OF THE ASSESSING OFFICER AND WHO HAS DEALT ELABORATELY ON THE GROUP CONCERNS AND ASSIGNMENT F EES RECEIVED AND RECEIVABLE AND GAVE IN DEPTH ANALYSIS WITH ACCOUNT ING ENTRIES TO SUBSTANTIATE SUCH DISPUTED INCOME HAS TO BE TAXED O NLY IN ASSESSMENT YEAR 2008-09 AND FOUND TAX EVASION SYSTEM TO SKIP THE PAYMENT OF TAXES. THE ASSESSEE AND GROUP CONCERNS HAVE UTILIZ ED THE FUNDS AND THE SUBMISSIONS OF THE ASSESSEE AND JUDICIAL DECISI ONS ARE DISTINGUISHED. BUT THE LD.COMMISSIONER OF INCOME TA X (APPEALS) DEALT ON THE FINDINGS OF THE ASSESSING OFFICER AND CONSI DERED THE FRESH EVIDENCE FILED BY THE ASSESSEE ON 10.10.2010 AND R ELIED ON AGREEMENT ENTERED WITH THREE PARTIES, TERMS AND CONDITIONS O F THE FOURTH ASSIGNEE AND ALSO PROBABILITY OF ASSIGNMENT FEES PA YABLE ON THE HAPPENING OF THE EVENT OF APPROVALS FROM CONCERNED AUTHORITIES AND APPROVAL IF DOES NOT GO THROUGH THE FOURTH ASSIGNEE S HAS EVERY RIGHT TO WITHDRAW THE MONEY. THE COMMISSIONER OF INCOME TA X (APPEALS) CONSIDERED ELABORATE SUBMISSIONS REFERRED IN HIS OR DER AT PAGE NOS.5 TO 11 BASED ON THE FRESH EVIDENCE FILED IN THE COURSE OF APPELLATE PROCEEDINGS. THE EVIDENCE WAS NOT PART OF ASSESSME NT RECORDS AND ENTIRELY FRESH CLAIM WAS MADE FOR THE FIRST TIME AN D ASSESSING OFFICER DENIED OPPORTUNITY TO VERIFY AND EXAMINE AND DECIDE THE ISSUE. THE ITA NO. 1441/MDS/2012 :- 12 -: LD.COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT CA LLED FOR THE REMAND REPORT AND OBJECTION OF THE ASSESSING OFFI CER. THE LD. COMMISSIONER OF INCOME TAX(A) ERRED IN CONSIDERING THE FRESH EVIDENCE AND THE DATE OF APPROVAL AND NECESSARY PER MISSIONS OBTAINED ON 01.08.2008 AND WHEREAS THIS INFORMATION IS ENTIR ELY ON A NEW DIMENSION WHICH THE ASSESSING OFFICER COULD NOT VER IFY AND PRAYED FOR SETTING ASIDE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). 6. CONTRA, THE LD. AUTHORISED REPRESENTATIVE RELIED ON THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND JUD ICIAL DECISIONS AND AGREEMENT ENTERED WITH THE ASSIGNEE AND FILED P APER BOOK ON THE AGREEMENTS, GUARANTEES AND ALSO PERMISSION LETTERS TO SUBSTANTIATE THEIR CLAIM AND ARGUED THAT THERE IS NO SUPPRESSION OF INCOME AND ASSIGNMENT FEE WAS OFFERED TO TAX IN THE ASSESSM ENT YEAR 2009- 2010. 7. WE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIA L ON RECORD AND JUDICIAL DECISIONS CITED. THE CONTENTIO N OF THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE ASSESSING OFF ICER HAS MADE A ELABORATE EXAMINATION OF RECORDS WITH INFORMATION S UBMITTED IN ASSESSMENT PROCEEDINGS AND PASSED ASSESSMENT ORDER BASED ON THE FACTS OF THE CASE. THE ASSIGNMENT FEES IS ACCOUNTE D ON MERCANTILE SYSTEM OF ACCOUNTING BY THE ASSESSEE FIRM WHEREAS T HE ASSESSEE HAS ITA NO. 1441/MDS/2012 :- 13 -: CONSIDERED INCOME OF THREE ASSIGNEES IN THE BOOKS O F ACCOUNTS AND OFFERED TO TAX. IN RESPECT OF FOURTH ASSIGNEE FEE WHICH IS A DISPUTED ISSUE WAS OFFERED IN ASSESSMENT YEAR 2009-2010. TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS SUMMARIZED AND RELIED ON THE SUBMISSIONS OF THE ASSESSEE FILED BY LETTER DAT ED 10.10.2008 WHICH ARE ENTIRELY ON NEW DIMENSION AND ASSESSMENT ORDER DOES NOT SPEAK ON THIS ISSUE. THE PRE-CONDITIONS AND PROBAB ILITIES OF ENTERING INTO AGREEMENT AND REALIZATION OF MONEY ON HAPPENIN G OF EVENT WAS NOT DISCUSSED OR MENTIONED IN THE ASSESSMENT ORDER. THE LETTER FILED BY THE ASSESSEE ON THE ISSUE OF CRYSTALLIZATION OF EVENT AS PER AGREEMENT ON OBTAINING OF PERMISSION BROUGHT ON REC ORD FOR THE FIRST TIME BEFORE THE COMMISSIONER OF INCOME TAX (APPEAL S) AND THE ASSESSING OFFICER WAS DEPRIVED TO VERIFY SUCH VITA L EVIDENCE FOR TAXATION PURPOSE. IN THE HEARING PROCEEDINGS, THE LD. AUTHORISED REPRESENTATIVE DREW ATTENTION TO THE ESCROW ACCOUNT IN WHICH AMOUNT HAS BEEN TRANSFERRED AND DREW ATTENTION TO THE PER MIT FROM CPWD DATED 01.08.2008 AT PAGE NO.60 AND ALSO DREW ATTENT ION TO THE INCOME TAX RETURN OF THE ASSESSEE FIRM FOR THE ASSESSMENT YEAR 2009-2010 WERE THE ASSIGNMENT INCOME WAS OFFERED. THESE ARE THE NEW SET OF FACTS WHICH THE ASSESSEE FOR THE FIRST TIME BROUGHT ON RECORD. SO, CONSIDERING APPARENT FACTS AND CIRCUMSTANCES AND TH E AGREEMENTS AND MATERIAL EVIDENCE AND ALSO THE PROVISIONS OF RULE 4 6(A) OF THE INCOME ITA NO. 1441/MDS/2012 :- 14 -: TAX RULES WERE ADDITIONAL EVIDENCE HAS BEEN FILED. THE OPPORTUNITY HAS TO BE PROVIDED TO ASSESSING OFFICER WHICH THE C OMMISSIONER OF INCOME TAX (APPEALS) OVERLOOKED. WE ARE OF THE OP INION THAT THE MATTER HAS TO BE REMITTED TO THE FILE OF THE ASSESS ING OFFICER, THEREFORE, WE SET ASIDE THE ORDER OF THE COMMISSION ER OF INCOME TAX (APPEALS) ON THIS GROUND AND REMIT THE ENTIRE DISPU TED ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR COMPLETE EXAMINATION O F FACTS AND GENUINENITY IN ACCORDANCE WITH ACCOUNTING PRINCIPL ES AND THE ASSESSEE SHALL BE PROVIDED WITH ADEQUATE OPPORTUNITY OF BEIN G HEARD TO SUPPORT THEIR SUBMISSIONS BEFORE PASSING THE ORDER. THE GRO UND OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. THE REVENUE HAS RAISED SECOND GROUND ON THE CLAIM O F 100% DEPRECIATION ON WIND TURBINE GENERATORS (WTG). 9. THE ASSESSING OFFICER ON PERUSAL OF PROFIT AND LOSS ACCOUNT FOUND ASSESSEE HAS CLAIMED A4,59,08,637/-AS DEPRECI ATION TOWARDS WTG UNITS AND UPON FURTHER ENQUIRY THE ASSESSEE FIR M EXPLAINED THAT IT HAS ACQUIRED FIVE UNITS OF WIND TURBINE GENERATORS (WTG) WITH MANUFACTURING CAPACITY OF 250KW FROM M/S. PIONEER WINCON PRIVATE LIMITED EACH COSTING A1,18,00,000/-. THE LD. ASSESS ING OFFICER FOUND ON VERIFICATION OF INVOICE DATED 30.09.2007 ASSESS EE CLAIMED 100% ITA NO. 1441/MDS/2012 :- 15 -: DEPRECIATION ON WIND TURBINE GENERATORS, THE LD. AUTHORISED REPRESENTATIVE SUBMITTED LETTERS FROM SUPPLIER OF T HE TURBINES AND ALSO COMMISSIONING CERTIFICATE FROM TAMIL NADU ELECTRICI TY BOARD (TNEB). AS PER LETTERS WIND TURBINE GENERATORS ARE COMMISSIONE D AT VEERASIGAMANI SITE ON 28.09.2007 AND COME INTO GE NERATION MODE WITHIN TWO TO THREE DAYS AFTER TRIAL RUNS. AS PER T HE GENERAL PRACTICE, THE INVOICE BY THE SELLER RAISED WILL BE AFTER WIND TURBINE GENERATORS COMES INTO GENERATION MODE. ON PERUSAL OF THE COMM ISSIONING CERTIFICATE ISSUED BY TNEB THREE WIND TURBINE GENE RATORS ARE COMMENCED ON 28.09.2007 AND TWO TURBINE COMMISSION ED ON 30.09.2007 AND ALSO GENERATED THREE UNITS FROM 28.0 9.2007 TO 15.10.2007 AND TWO UNITS BETWEEN 30.09.2007 TO 15. 10.2007. THE ASSESSING OFFICER RELIED ON THE INVOICES COLLECTED FROM M/S. PIONEER WINCON PRIVATE LIMITED BEARING NO.30 TO 37 AND DELI VERY CHALLANS DATED 18.09.2007, 20.09.2007 AND 22.09.2007 FROM PONDICHE RRY UNIT AND CALLED FOR ADDITIONAL INFORMATION FROM TNED WITH RE GARD TO DATE WISE GENERATION OF ELECTRICITY AND ENTRIES MADE IN THE E B REGISTERS BUT SUPERINTEND ENGINEER OF TEDC, TIRUNELVELI REPLIED T HAT THERE IS NO DAILY METER READING IN THE WTGS AND FIRST METER R EADING WAS PLACED ONLY ON 13.10.2007. THE ASSESSING OFFICER ON VERIFI CATION OF INVOICE COPIES, DELIVERY CHALLANS AND INFORMATION FROM TNE B FOR GENERATION BASED ON REPORT OF TERRITORIAL FIELD OFFICER METE R READING MADE ON ITA NO. 1441/MDS/2012 :- 16 -: 13.10.2007 CAME TO THE CONCLUSION THAT THE ASSESSE E FIRM HAS NOT USED WTGS FOR MORE THAN 180 DAYS BUT CLAIMED DEPREC IATION AT 100% INSTEAD OF 50% AND MADE FINDINGS AS UNDER:- FROM THE ABOVE RESPONSES RECEIVED FROM THE SUPPLI ER AND TNEB IT IS VERY CLEAR THAT THE ASSESSEE FIRM HA S NOT USED THE MACHINERY FOR MORE THAN 180 DAYS BUT CLAIMED THE DEPRECIATION AT FULL ELIGIBLE RATE INS TEAD OF FIFTY PERCENTAGE OF THE ELIGIBLE AMOUNT. AS PER THE INFORMATION FURNISHED BY THE SUPPLIER ALL THE INVOI CE COPIES ARE RAISED ON 30.09.2007. NOWHERE IN THE BUSINESS, IT IS A PRACTICE THAT AFTER THE SUPPLY A ND COMMISSIONING THE INVOICES ARE RAISED. FROM THE DELIVERY CHALLANS THE MACHINERY STARTED FROM PONDICHERY ON 18 TH , 20 TH AND 22 ND SEPTEMBER TO A FARAWAY PLACE IN TIRUNELVELI DIST. THE MACHINERY TRANSPORTED IN A DAY OR TWO TO SUCH A FAREWAY PLACE IN TIRUNELVELI DISTRICT. EVEN IF PRESUMING THAT IT IS POSSIBLE FOR TRANSPORTING THE SAME IN SUCH A SHORTER TIME, T HE ERECTION OF THE SAME WILL DEFINITELY TAKE LONGER PE RIOD AS THE CEMENTING AND PLASTING WORKS AND MANY OTHER WORKS ARE INVOLVED IN ERECTION OF THE WINDMILL. TH E SUPPLIER ALSO STATED THAT AFTER COMMISSIONING OF TH E WTGS IT WILL TAKE 2-3 DAYS TIME NORMALLY TO COME TO GENERATION MODE AND AFTER THE TRIAL RUNS ONLY, THE WTG WILL START GENERATION. IN THIS ENTIRE PROCESS, IT IS VERY CLEAR THAT THE WINDMILLS ARE NOT COMMISSIONED ON 30.09.2007 AS STATED BY THE ASSESSEE. ON THE BASIS OF EVIDENCE AND THE COMMISSIONING CERT IFICATE, THE ASSESSING OFFICER HAS RESTRICTED THE CLAIM OF DEPRE CIATION TO 50% AS THE ASSESSEE COULD NOT ESTABLISH THE USAGE OF MACHI NERY FOR MORE THAN 180 DAYS AND MADE A DISALLOWANCE OF A2,29,54,319/- AS EXCESS DEPRECIATION. AGGRIEVED, THE ASSESSEE FILED AN APP EAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). ITA NO. 1441/MDS/2012 :- 17 -: 10. THE LD. AUTHORISED REPRESENTATIVE REITERATED HIS SU BMISSIONS MADE IN THE ASSESSMENT PROCEEDINGS AND ALSO ARGUE D THE GROUNDS ON THE CLAIM OF DEPRECIATION. THE INVOICE ARE GENERAL LY RAISED AFTER WTG Y COMES INTO GENERATION MODE AND DELIVERY OF WTG WAS ADVANCED AND MADE FULLY OPERATIONAL AS PER THE TERMS AND CONDITI ONS ENTERED WITH THE SUPPLIER M/S. PIONEER WINCON P. LTD. THE SELLER SHALL SUPPLY MACHINERY, ERECT, INSTALL AND OPERATE. AND INVOICE WILL BE RAISED ONLY AFTER COMPLETION OF ERECTION AND COMMISSIONING OF W TGS. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED DETAILS ALONGW ITH JUDICIAL DECISIONS ON THE GROUND OF USAGE OF MACHINERY FOR M ORE THAN 180 DAYS AND COMMISSIONER OF INCOME TAX (APPEALS) REFERRED A T PAGE NO.15 TO 18 OF HIS ORDER. THE LD. COMMISSIONER OF INCOME TA X (APPEALS) ON PERUSING THE MATERIAL INFORMATION AND INVOICES AND COMMISSIONING CERTIFICATE AND ALSO METER READING AND TRAVEL DISTA NCE GAVE ELABORATE FINDINGS AT PAGE NO. 18 AS UNDER:- IN ANY CASE, ALL THE ABOVE OBSERVATIONS OR OPINI ONS OF THE ASSESSING OFFICER ARE PURELY ON PRESUMPTIONS AND SU RMISES. THE DOCUMENTS FURNISHED BY THE ASSESSEE, ON THE OTHER HAND, CLEARLY SHOWS THAT THREE OF THE WTGS ARE COMMISSION ED ON 28.09.2007 AND THE REMAINING TWO WTGS ARE COMMISSIONED ON 30.09.2007. THE DOCUMENTS FURNISHED BY THE ASSESSEE ARE (I] COMMISSIONING CERTIFICATE FROM TAMIL NADU ELECTRICITY BOARD (TNEB) AND (II) A CONFIRMATION LETTER FROM THE SUPPLIER OF THE WTGS. THE CONTENTS OF THE LETTER ISSUE BY THE SUPPLIER SAYS T HAT - 'THIS IS WITH REFERENCE TO YOUR WTGS COMMISSIONED A T VCERASIGAMANI SITE ON 28/09/2007. AFTER COMMISSIONING OF THE WTGS, IT HAS TO COME TO GENERATION MODE WHIC H WILL TAKE 2-3 DAYS TIME NORMALLY. AF.ER TRIAL RUNS ONLY, THE ITA NO. 1441/MDS/2012 :- 18 -: WTG WILL START GENERATION. AFTER IT COMES TO THE GENERATION MODE ONLY THE INVOICE WILL BE RAISED'. THE ABOVE COMMISSIONING CERTIFICATES OF WTGS WERE ISSUED BY SUPERINTENDING ENGINEER, TIRURIELVELI ELECTRICITY DISTRIBUTION CIRCLE OF TNEB, A STATE GOVERNMENT ORGANIZATION AND HENCE HAS TO BE T AKEN AS AN EVIDENCE. THE CERTIFICATES CLEARLY STATE THAT OUT OF THE TOTAL 0; FIVE WTGS, THREE WTGS ARE COMMISSIONED ON 28.09.2007 AND THE BALANCE TWO ARE COMMISSIONED ON 30.09.2007. THE SAID COMMISSIONING CERTIFICATES ALSO CLEARLY MENTIONED THAT POWER WAS GENERATED FROM 28.09.2007 TO 15.10.2007 IN THE CASE FIRST MENTIONED 3 WTGS AND FROM 30.09.2007 TO 15.10.2007 IN THE CASE LATTER MENTIONED 2 WTGS, ALONG WITH THE QUANTITY (UNITS) OF ELECTRICITY GENERATED FROM EACH OF THE WTG DURING THE SAID PERIOD. ATTACHED TO THESE COMMISSIONING CERTIFICATES, THERE WERE STATEM ENTS OF ELECTRICITY GENERATED FOR THE CORRESPONDING PERI OD, ISSUED BY THE ACCOUNTS OFFICER (REVENUE) OF TNEB, CONTAINING THE FULL PARTICULARS LIKE INITIAL METER READINGS AS ON 28.09.2007 / 30.09.2007 AND THE FINAL METER READINGS AS ON 13.10.2007 AND THE QUANTITY OF ELECTRICITY GENERATED AND THE OTHER DETAILS. FURTHER, THE COMMISSIONER OF INCOME TAX (APPEALS) M ADE CALCULATION ON THE USAGE OF WTG FOR MORE THAN 180 DAYS AND COMM ERCIAL GENERATION OF ELECTRICITY HAS BEEN TAKEN PLACE AFTE R ERECTION AND COMMISSIONING AND CONSIDERED THE ACTION OF THE ASS ESSING OFFICER IS NOT TENABLE. FURTHER DIRECTED THE ASSESSING OFFICE R TO ALLOW 100% DEPRECIATION ON WTGS BASED ON MATERIAL EVIDENCE. A GGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE ASSAILED AN APPEAL BEFORE THE TRIBUNAL. 11. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE VEH EMENTLY SUPPORTED THE FINDINGS OF THE ASSESSING OFFICER AND LD. COMMISSIONER ITA NO. 1441/MDS/2012 :- 19 -: OF INCOME TAX (APPEALS) ERRED IN DELETING THE ADDIT ION ON THE FACTS WITHOUT CONSIDERING THE REALITY WHICH THE ASSESSING OFFICER HAS REFERRED IN HIS ORDER. THE DEPRECIATION @100% HAS TO BE ALLO WED ON THE MACHINERY USED FOR MORE THAN 180 DAYS. THE ASSESSE E COULD NOT SUBMIT ANY INFORMATION TO SUBSTANTIATE THE CLAIM TH AT MACHINERY WAS PUT TO USE FOR MORE THAN 180 DAYS IN THE ASSESSMENT PROCEEDINGS. FURTHER CONSIDERING THE CERTIFICATE PRODUCED BY THE ASSESSEE FIRM CONFIRMING THE MACHINERY WAS USED PRIOR TO 30.09.20 07 AND THE SAID SUBMISSIONS ARE IN THE NATURE OF FRESH EVIDENCE WH ICH ASSESSING OFFICER COULD NOT EXAMINE AND PLEADED THAT THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS) TO BE SET ASID E. 12. CONTRA, THE LD. AUTHORISED REPRESENTATIVE RELIED ON THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS ) AND TO SUBSTANTIATED HIS SUBMISSIONS WITH COMMISSIONING C ERTIFICATES OF TNEB AT PAGE NOS.66 TO 70 OF PAPER BOOK AND ALSO THE BIL LS RAISED IN RESPECT OF INITIAL READING AND ARGUED THAT WTG ARE COMMISS IONED BEFORE 30.09.2007 AND THE ASSESSEE HAS RIGHTLY CLAIMED 100 % DEPRECIATION AS PER LAW. 13. WE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE LD. DEPARTMENT AL REPRESENTATIVE ITA NO. 1441/MDS/2012 :- 20 -: VEHEMENTLY ARGUED THAT THE ASSESSING OFFICER MADE A DETAILED WORKING IN RESPECT OF ALLOWANCE OF DEPRECIATION ON WTGS W ERE INVOICE COPIES ARE CALLED FOR AND VERIFIED ALONGWITH CONFIRMATION OF SUPPLIERS M/S. PIONEER WINCON PRIVATE LIMITED. THE ASSESSEE FIRM BASED ON INVOICE COPIES CLAIMED 100% DEPRECIATION ALSO CERTIFICATE OF COMMISSIONING SPECIFYING WTG WAS COMMISSIONED AT VEERASIGAMANI SI TE ON 28.09.2007 AND IT SHALL TAKE TWO TO THREE DAYS NORM ALLY FOR GENERATION MODE FURTHER SUBSTANTIATED THE ARGUMENTS ON THE DEL IVERY CHALLANS DATED 18.09.2007, 20.09.2007 AND 22.09.2007 ISSUED FROM PONDICHERRY UNITS. THERE IS SCOPE OF CONFUSION REG ARDING INVOICE DATED 30.9.2007 ON COMPARISON OF DELIVERY CHALLANS ISSUE D MUCH PRIOR TO THE DATE OF INVOICE. FURTHER THE FIRST METER READ ING WAS TAKEN ON COMMISSIONING ON WTG BY THE TERRITORIAL FIELD OFFIC ER ON 13.10.2007 EXPLAINING THE GENERATED UNITS FOR EXPORT AND IMPOR T. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ALLOWED 10 0% DEPRECIATION BASED ON WRITTEN SUBMISSIONS FOLLOWED BY THE EVIDEN CE SUPPORTING THE INSTALLATIONS AND THERE IS NO DISPUTE ON OWNERSHIP OF UNITS. THE ASSESSEE SUBMITTED COMMISSIONING CERTIFICATE ISSUED BY TNEB BILLS RAISED BY TNEB AND INSTALLATION DOCUMENTS WHICH THE ASSESSING OFFICER WAS DENIED AN OPPORTUNITY TO EXAMINE THE EVIDENCE F ILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). CONSIDERIN G THE APPARENT FACTS, WE ARE OF THE OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED ITA NO. 1441/MDS/2012 :- 21 -: BY THE ASSESSING OFFICER WITH THE FRESH EVIDENCE FI LED BY THE ASSESSEE ON COMMISSIONING OF WTG. THEREFORE, WE SET ASIDE T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) ON THIS GROUND AND REMIT THE ISSUE TO THE FILE OF ASSESSING OFFICER FOR LIMITE D PURPOSE TO EXAMINE WHETHER THE WTG HAS BEEN PUT TO USE FOR MORE THAN 180 DAYS AND ADEQUATE OPPORTUNITY OF BEING HEARD BE PROVIDED TO ASSESSEE BEFORE PASSING THE ORDER ON MERITS. THE GROUND OF THE REV ENUE IS PARTLY ALLOWED. 14. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 4TH DAY OF MA RCH, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ! ' ) (G. PAVAN KUMAR) /JUDICIAL MEMBER / CHENNAI 0 / DATED:04.03.2016 KV 1 ) +#-23 43&- / COPY TO: 1 . '( / APPELLANT 3. ! 5- () / CIT(A) 5. 3 89 +#-# / DR 2. +,'( / RESPONDENT 4. ! 5- / CIT 6. 9:% ; / GF