DCIT, Karur V. M/s. Arvind-A-Traders, Karur

ITA 1652/CHNY/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61201 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 14-06-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 01-08-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SHUKLA IRS
• Assessee Lawyers: R KUMAR
• Keywords: Depreciation; Question of law; Competent authority
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL M EMBER ITA NO.1571/MDS/2008 (ASSESSMENT YEAR: 2004-05) M/S. ARVIND A.TRADERS, 21A, 5 TH CROSS, SENGUNTHAPURAM, KARUR. PAN:AAFFA2613N VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-II, TRICHY. (APPELLANT) (RESPONDENT) & ITA NO.1652/MDS/2008 (ASSESSMENT YEAR: 2004-05) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-II, TRICHY. VS. M/S. ARVIND A.TRADERS, 21A, 5 TH CROSS, SENGUNTHAPURAM, KARUR. PAN:AAFFA2613N (APPELLANT) (RESPONDENT) ASSESSEE BY : MR. R.KUMAR, ADVOCATE REVENUE BY : MS. ANUPAMA SHUKLA, IRS, CIT DR DATE OF HEARING : 14 TH JUNE, 2012 DATE OF PRONOUNCEMENT : 14 TH JUNE, 2012 O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER: THE PRESENT SET OF APPEALS I.E. ITA NOS. 1571/MDS/2 008 & 1652/MDS/2008 RELEVANT TO THE ASSESSMENT YEAR HA VE BEEN FILED BY THE ASSESSEE AND REVENUE RESPECTIVELY ITA NO.1571 & 1652/MDS/2008 2 IMPUGNING THE ORDER OF THE CIT(A), TIRUCHIRAPPALLI DATED 23.05.2008 RELEVANT TO THE ASSESSMENT YEAR 2004-05. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FIRM IS ENGAGED IN MANUFACTURING AND EXPORT OF COTTON HOME NEEDS SUCH AS BEDSPREADS, TABLE CLOTH, CURTAIN ETC. THE A SSESSEE FILED RETURN OF INCOME RELEVANT TO THE ASSESSMENT Y EAR 2004- 05 ON 13.10.2004 ADMITTING TOTAL INCOME OF ` 57,46,016/-. THE RETURN OF THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS THE ACT) AND THE CASE WAS SELECTED FOR SCRUTINY. NOTICE UNDE R SECTION 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE ON 16 .12.2004. THE ASSESSING OFFICER VIDE LETTER DATED 13.7.2006 REQUESTED THE ASSESSEE TO PRODUCE CERTAIN DOCUMENTS TO SUPPOR T ITS CLAIM FOR DEDUCTIONS/EXPENDITURE. THE ASSESSEE WAS ASKED TO PRODUCE NAMES AND ADDRESSES OF PERSONS FROM WHOM PURCHASES WERE MADE AND TO WHOM PRODUCTION EXPENSES WERE PAID. THE A.R. OF THE ASSESSEE FURNISHED THE DETAILS AS ASKED FOR BY THE ASSESSING OFFICER. THE ASSESSING O FFICER VIDE ASSESSMENT ORDER DATED 19.12.2006 MADE ADDITIONS/DISALLOWANCES IN THE INCOME RETURNED BY T HE ITA NO.1571 & 1652/MDS/2008 3 ASSESSEE ON VARIOUS COUNTS. AGGRIEVED AGAINST THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE CIT(A). THE CIT(A) VIDE ORDER DATED 23.5.2008 PART LY ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED AGAINST THE O RDER OF THE CIT(A) BOTH THE ASSESSEE AND THE REVENUE HAVE C OME IN APPEAL ASSAILING THE ORDER OF THE CIT(A). THE ASSE SSEE HAS ASSAILED THE ORDER OF THE CIT(A) BY RAISING 10 GROU NDS IN THE APPEAL. 3. SHRI R. KUMAR, ADVOCATE APPEARING ON BEHALF OF T HE ASSESSEE DID NOT PRESS GROUND NO. 1 & 2. ASSAILING GROUND NO.3, THE COUNSEL SUBMITTED THAT THE CIT(A) HAS ERR ED IN SUSTAINING THE DISALLOWANCE OF SALES TAX OF ` 69,371/- . HE SUBMITTED THAT CIT(A) HAS NOT ONLY SUSTAINED BUT HA S ENHANCED THE AMOUNT OF DISALLOWANCE FROM ` 56,034/- TO ` 69,371/- WITHOUT AFFORDING SUFFICIENT OPPORTUNITY O F HEARING TO THE ASSESSEE . AS REGARDS GROUND NO.4, THE COUNSEL SUBMITTED THAT THE CIT(A) HAS ERRED IN DIRECTING THE ASSESSI NG OFFICER TO WITHDRAW THE DEDUCTION UNDER SECTION 80HHC WHICH HA S BEEN EARLIER GRANTED BY THE ASSESSING OFFICER. HE SUBMIT TED THAT WITHDRAWAL OF DEDUCTION UNDER SECTION 80HHC BY THE CIT(A) ITA NO.1571 & 1652/MDS/2008 4 IS IN CONTRAVENTION OF THE PROVISIONS OF SECTION 25 1(2). HE SUBMITTED THAT NO NOTICE AS PROVIDED UNDER THE PROV ISIONS OF THE ACT WAS SERVED TO THE ASSESSEE BEFORE WITHDRAWI NG DEDUCTION UNDER SECTION 80HHC. SIMILARLY FOR GROUND S OF APPEAL NO.5 AND 9, THE COUNSEL SUBMITTED THAT THE C IT(A) HAS COMMITTED ERROR IN NOT ALLOWING DEDUCTION UNDER SEC TION 80HHC AND ON ACCOUNT OF DEPB RECEIPTS. THE COUNSEL FURTHER PRAYED FOR REMITTING THESE ISSUES BACK TO T HE ASSESSING OFFICER FOR MODEL COMPUTATION. 4. THE COUNSEL IN SUPPORT OF GROUND NO.6 TO 8 CONTE NDED THAT APART FROM THE EXPORT BUSINESS, THE ASSESSEE H AS ALSO INSTALLED WINDMILL WHICH IS A SEPARATE ACTIVITY. TH E ASSESSEE WAS MAINTAINING SEPARATE BOOKS OF ACCOUNT. THERE AR E SEPARATE DIVISIONS FOR EXPORT BUSINESS AND ACTIVITY RELATING TO ELECTRICITY GENERATION BY WINDMILLS. HE SUBMITTED T HAT SINCE THE ASSESSEE IS MAINTAINING SEPARATE ACCOUNTS FOR EXPOR T BUSINESS AND DOMESTIC BUSINESS, THE DEDUCTION CANNO T BE GRANTED ON THE BASIS OF TOTAL TURNOVER OF THE BUSIN ESS OF THE ASSESSEE. THE ASSESSEE IS ENTITLED FOR DEDUCTION FU LLY ON ITA NO.1571 & 1652/MDS/2008 5 EXPORT PROFITS. IN ORDER TO SUPPORT HIS CONTENTIONS , HE RELIED ON THE JUDGEMENT OF THE JURISDICTIONAL HIGH COURT IN T HE CASES OF I) CIT VS. M.GANI AND CO., 301 ITR 38 II) CIT VS. RATHORE BROTHERS, 254 ITR 656 III) CIT VS. MACMILLAN INDIA LTD., 295 ITR 67 IV) CIT VS. SURESH B.MEHTA, 291 ITR 462 5. MS. ANUPAMA SHUKLA, APPEARING ON BEHALF OF THE REVENUE, SUBMITTED THAT THE ONLY ISSUE IN THE APPEA L FILED BY THE REVENUE IS GRANT OF DEPRECIATION ON THE SECOND WINDMILL. THE D.R. SUBMITTED THAT THE SECOND WINDMILL ALLEGED TO HAVE COMMISSIONED BY THE ASSESSEE WAS ON 30.03.2004. THE SAID WINDMILL DID NOT GENERATE A SINGLE UNIT OF ENERGY T ILL THE END OF THE FINANCIAL YEAR I.E. 31.03.2004. THEREFORE, THE ASSESSEE IS NOT ENTITLED TO DEPRECIATION ON THE SECOND WINDMILL . 6. ON THE OTHER HAND, THE COUNSEL FOR THE ASSESSEE SUBMITTED THAT WINDMILL WAS COMMISSIONED ON 30.03.2 004. THE ADDITIONAL CHIEF ENGINEER, TAMIL NADU ELECTRICI TY DISTRIBUTION CIRCLE, TIRUNELVELI VIDE LETTER DATED 15.09.2006 HAD GIVEN THE DETAILS OF ELECTRICITY GENERATED BY T HE ASSESSEES WINDMILL FOR THE PERIOD FROM 31.03.2004 TO MARCH, ITA NO.1571 & 1652/MDS/2008 6 2005. THE ASSESSEE PRODUCED 1460 UNITS OF ELECTRIC ITY FROM 30.03.2004 TO 6.4.2004 AND RECEIVED ` 3,492/- AS SALES PROCEED FROM TNEB. HE FURTHER SUBMITTED THAT TNEB HAD ISSUED COMMISSIONING CERTIFICATE ON 30.03.2004 AND ON THE SAME DATE AGREEMENT WITH TNEB WAS ENTERED FOR THE S ALE OF POWER. INITIALLY, WINDMILL WAS CONNECTED TO PERUNGU DI SUB- STATION. THEREAFTER, IT WAS CONNECTED TO CHITHAMBAR APURAM SUB-STATION. THE WINDMILL WAS READY FOR POWER GENER ATION, IT DID NOT PRODUCE ANY ELECTRICITY FROM APRIL, 2004 TO SEPTEMBER, 2004 FOR THE REASON THAT TAMIL NADU ELECTRICITY BO ARD WAS NOT ABLE TO CONNECT THE WINDMILL TO THE GRID. THE ASSES SEE WAS NOT AT FAULT FOR NOT GENERATING THE ELECTRICITY. WI NDMILL UNIT WAS READY TO USE, THEREFORE, THE ASSESSEE WAS ENTITLED FOR DEPRECIATION ON THE WINDMILL. IN ORDER TO SUPPORT H IS CONTENTIONS, THE COUNSEL RELIED ON THE ORDERS OF TH E TRIBUNAL IN THE CASE OF ORCHID CHEMICALS & PHARMACEUTICALS LTD. IN ITA NO.1260/MDS/2011 DATED 2 ND MARCH, 2012 AND IN THE CASE OF M/S. JAMES TEXTILES IN ITA NO.1651/MDS/2008 DATED 3 0 TH OCTOBER, 2009. ITA NO.1571 & 1652/MDS/2008 7 7. WE HAVE HEARD THE SUBMISSIONS MADE BY THE PARTIE S AND HAVE GONE THROUGH THE JUDGEMENTS RELIED ON BY T HE RESPECTIVE PARTIES. WE ARE OF THE CONSIDERED OPINIO N THAT THE CIT(A) HAS RIGHTLY DISALLOWED THE AMOUNT OF SALES T AX. SINCE THE SAID SALES TAX LIABILITY WAS FOR THE PERIOD OF MARCH, 2003, THE SAME IS ALLOWABLE IN THE ASSESSMENT YEAR 2003-0 4 AND NOT IN THE ASSESSMENT YEAR 2004-05. A PERUSAL OF TH E IMPUGNED ORDER SHOWS THAT AS PER RECONCILIATION OF SALES TAX AS PER ASSESSMENT ORDER AND BOOK, THE SALES TAX LIA BILITY RELATING TO MARCH, 2003 IS `6 9,371/-. HOWEVER, THE ASSESSING OFFICER HAD WRONGLY DISALLOWED ` 56,034/- ONLY. THE CIT(A) HAS RECTIFIED THE MISTAKE WHILE CONFIRMING THE FIND INGS OF THE ASSESSING OFFICER ON THE ISSUE. THEREFORE, GROUND N O.3 OF THE APPEAL IS DISMISSED. 8. AS REGARDS GROUND NOS. 4, 5 & 9 RELATING TO DED UCTION UNDER SECTION 80HHC AND DEPB RECEIPTS ARE CONCERNED , DETAILED FACTS FOR DECIDING THE ISSUE ARE NOT FORTH COMING FROM THE ORDER OF THE CIT(A). IN THE INTEREST OF JUSTICE , WE DEEM IT APPROPRIATE TO REMIT THE MATTER BACK TO THE ASSESSI NG OFFICER FOR MODEL COMPUTATION. ITA NO.1571 & 1652/MDS/2008 8 9. IT IS A WELL SETTLED LAW THAT IF THE ASSESSEE IS MAINTAINING SEPARATE BOOKS OF ACCOUNT FOR EXPORT BUSINESS AND D OMESTIC BUSINESS, THE ASSESSEE IS ENTITLED FOR FULL DEDUCTI ON ON EXPORT PROFITS. THE CIT(A) HAS ERRED IN HOLDING THAT THE D EDUCTION U/S.80HHC IS TO BE ALLOWED ONLY AFTER WORKING OUT G ROSS TOTAL INCOME OF THE APPELLANT/ASSESSEE FIRM. THE ASSESSEE HAS TWO SEPARATE BUSINESS DIVISIONS. FOR BOTH THE DIVISIONS SEPARATE BOOKS OF ACCOUNTS ARE BEING MAINTAINED. IN THE RETU RN OF INCOME, INCOME FROM THE TWO DIVISIONS IS SHOWN SEP ARATELY. BOTH THE DIVISIONS ARE INDEPENDENT UNIT AND THEREFO RE STAND ALONE. THE ASSESSEE HAD RIGHTLY CLAIMED DEDUCTION U NDER SECTION 80HHC ONLY IN RESPECT OF BUSINESS PROFITS O F EXPORT DIVISION. THE BUSINESS LOSS OF WINDMILL DIVISION IS NOT TO BE SET OFF AGAINST THE EXPORT PROFIT FOR THE PURPOSE OF CA LCULATIONS OF DEDUCTION UNDER SECTION 80HHC. WHERE THE ASSESSEE HAD MAINTAINED SEPARATE ACCOUNTS AND MAINTAINED TRADING RECEIPTS AND PROFIT AND LOSS ACCOUNT SEPARATELY FOR EXPORT SALES AND DOMESTIC SALES AND HAD PRODUCED SUFFICIEN T MATERIAL IN SUPPORT OF THE CLAIM, THERE IS NO WAR RANT FOR DISALLOWING ANY PORTION OF EXPORT EARNINGS PRO RATA BY INVOKING ITA NO.1571 & 1652/MDS/2008 9 THE PROVISIONS OF SECTION 80HHC(3)(B) OF THE ACT. THIS VIEW HAS BEEN UPHELD BY THE HONBLE MADRAS HIGH COURT IN THE CASE OF M.GANI AND CO., (SUPRA). IN THE SAID JUDGEM ENT, THE HONBLE DIVISION BENCH HAS RELIED ON THE RATIO LAID DOWN BY THE HIGH COURT IN THE CASES OF MACMILLAN INDIA LTD( SUPRA), RATHORE BROTHERS (SUPRA) AND SURESH B.MEHTA (SUPRA) . THUS, THE ASSESSEE IS ENTITLED TO DEDUCTION UNDER SECTION 80HHC ON THE INCOME OF EXPORT DIVISION ONLY. THE GROUND NO.6 TO 8 OF THE APPEAL IS ALLOWED. ITA NO.1652/MDS/2008: 10. AS PER THE PROVISIONS OF INCOME TAX ACT, THE AS SESSEE IS ENTITLED FOR DEPRECIATION, IF THE FOLLOWING CON DITIONS ARE SATISFIED:- I) THE ASSET MUST BE OWNED BY THE ASSESSEE; II) IT MUST BE USED FOR THE PURPOSE OF BUSINESS OR PROFESSION; III) IT SHOULD BE USED DURING THE RELEVANT PREVIOUS YEAR. IN THE INSTANT CASE, DOCUMENTS ON RECORD SHOW THAT THE ASSET I.E. WINDMILL IN THE PRESENT CASE WAS READY TO USE AS THE SAME WAS COMMISSIONED ON 30.03.2004. ELECTRICAL INSPECT ORATE OF ITA NO.1571 & 1652/MDS/2008 10 THE GOVERNMENT OF TAMIL NADU ISSUED EQUIPMENT TEST CERTIFICATE TO THE ASSESSEE FOR SECOND WINDMILL ON 29.3.2004. TNEB ISSUED A CERTIFICATE ON 30.03.2004 CERTIFYING THE COMMISSIONING AND CONNECTION OF THE WINDMILL TO TNE B 11KV GRID. ON THE SAME DATE I.E. 30.03.2004 THE ASSESSEE ENTERED INTO AGREEMENT WITH TNEB FOR SALE OF POWER GENERATE D FROM WINDMILL. THE WINDMILL PRODUCED SOME UNITS OF ELECT RICITY WHICH WERE TRANSMITTED TO TNEB THROUGH PERUNGUDI SU B- STATION. THEREAFTER, THE DISCONNECTION OF THE WIND MILL FOR SOME TECHNICAL REASONS WILL HAVE NO EFFECT ON THE C LAIM OF DEPRECIATION OF THE ASSESSEE. MOREOVER THE PERIOD O F DISCONNECTION FALLS IN THE NEXT ASSESSMENT YEAR. ON CE THE ASSET HAS BEEN PUT TO USE FOR BUSINESS GENERATION O F ELECTRICITY IN THE RELEVANT PREVIOUS YEAR, THE ASSE SSEE IS ENTITLED TO CLAIM BENEFIT OF DEPRECIATION. EVEN TRI AL RUN OF AN ASSET WOULD FALL WITHIN THE AMBIT OF TERM USED FO R THE PURPOSE OF BUSINESS. MOREOVER, THE ASSESSEE CANNOT BE DENIED THE BENEFIT OF DEPRECIATION ON THE GROUND TH AT THE ASSET WAS USED FOR A VERY SHORT DURATION. ITA NO.1571 & 1652/MDS/2008 11 11. WE FIND THAT THE CASE OF THE ASSESSEE IS SQUARE LY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH O F THE TRIBUNAL IN THE CASE OF M/S. ORCHID CHEMICALS (SUPR A), WHEREIN IT HAS BEEN HELD AS UNDER:- 6. THE HONBLE HIGH COURT OF MADRAS HAD CONSIDERED A SIMILAR ISSUE IN THE CASE OF ACIT V. KENCES FOUNDA TION PVT. LTD. (289 ITR 509). IN THAT CASE, THE ASSESSE HAD CLAIMED 100% DEPRECIATION WITH REFERENCE TO THE INVESTMENT IN THE WINDMILL WHICH GOT COMMISSIONED O N SEPTEMBER 30, 1995, AS CERTIFIED BY THE STATE ELECT RICITY BOARD. THE TRIBUNAL ACCEPTED THE CONTENTION OF THE ASSESSEE THAT IT WAS ENTITLED FOR 100% DEPRECIATION FOR THE ASSESSMENT YEAR 1995-96. THE REVENUE TOOK UP THE MATTER BEFORE THE HONBLE HIGH COURT WITH A QUESTION OF LAW THAT WHETHER THE TRIBUNAL WAS RIGHT IN ALLOWING 100% DEPRECIATION EVEN IF IT HELD THAT THE PRODUCTION STARTED FROM 30 TH SEPT.,1995 AND NOT ON 25 TH OCT., 1995 AND WHETHER IT HAS IGNORED THE PROVISIO NS OF SEC.32(1) SECOND PROVISO AND SEC.158B OF THE INCOME - TAX ACT, 1961. THE HONBLE HIGH COURT EXAMINED THE ISSUE AND FOUND THAT THE WINDMILLS WERE COMMISSIONE D ON 30.9.1995, AS CERTIFIED BY THE ELECTRICITY BOAR D. THE COURT, THEREFORE, HELD THAT THE ASSESSEE WAS ENTITL ED FOR 100% DEPRECIATION WITH RESPECT TO THE INVESTMENT IN THE INSTALLATION OF THE WINDMILL. THE DECISION OF THE T RIBUNAL ITA NO.1571 & 1652/MDS/2008 12 WAS UPHELD. 7. THE ABOVE DECISION IS SQUARELY APPLICABLE TO THE PRESENT CASE. IN THE PRESENT CASE ALSO, THE CERTIFICATE DATED 2.4.1995 ISSUED BY THE TNEB IS O N RECORD STATING THAT THE GENERATORS WERE COMMISSIONED ON 31.3.1995. THEREFORE, IT IS BEYOND ANY DISPUTE THAT IT HAS BEEN OFFICIALLY RECOGNIZED BY THE COMPETENT AUTHORITY THAT THE COMMISSIONING OF THE GENERATORS WAS COMPLETED IN THE IMPUGNED ASSESSMENT YEAR ITSELF. THIS IS THE CONDITION WHICH IS TO BE SATISFIED TO CLAIM DEPRECIATION ON THE WINDMI LL. ONCE THE SAID CONDITION IS SATISFIED, THE QUESTION OF ACTUAL GENERATION OF ELECTRICITY, PERHAPS IN THE NE XT PREVIOUS YEAR, DOES NOT DEFEAT THE CLAIM OF THE ASSESSE, AS THE ASSESSEE IS ENTITLED FOR DEPRECIATI ON ON COMMISSIONING ITSELF. THEREFORE, IN THE LIGHT OF THE ABOVE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT, WE HAVE TO HOLD THAT THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS RIGHTLY HELD THAT THE ASSESSEE IS ENTITLED FOR DEPRECIATION. ACCORDINGLY, WE UPHOLD THE ORDER OF THE COMMISSIONER OF INCOME- TAX(APPEALS). 12. IN ANOTHER CASE, I.E. ITA NO.1651/MDS/2008 - D CIT VS. M/S. JAMES TEXTILES DECIDED ON 30.10.2009 BY THE T RIBUNAL IT WAS HELD AS UNDER:- ITA NO.1571 & 1652/MDS/2008 13 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDERED THE FACTS AND MATERIALS ON RECORD. THERE IS NO DISPUTE ABOUT THE FACT THAT THE ASSESSEE HAD PRODUCED THE CERTIFICATE FROM TNEB REGARDING COMMISSIONING AND PERFORMANCE REPORTS OF NEG MICON (INDIA) PVT.LTD. THE ASSESSEE ALSO PRODUCED DETAILS OF UNITS GENERATED FOR THE PERIOD FROM 25.3.2004 TO 3.7.2005. WE FIND FORCE IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IN THE PRESENT CASE ON HAND THERE IS A BETTER FOOTING THAN THAT DEALT WITH BY THE TRIBUNAL IN THE EARLIER CASE CITED SUPRA WHEREIN ONLY TRIAL RUN WA S OVER. THE TRIBUNAL IN THAT CASE HAS HELD THAT EVEN TRIAL RUN IS ENOUGH FOR CLAIMING THE DEPRECIATION O N THE WINDMILL. FOR COMING TO THIS DECISION, THE TRIBUNAL FOLLOWED THE DECISIONS OF MADRAS HIGH COURT IN THE CASE OF V.RAMAKRISHNAN & SONS LTD. AND IN THE CASE OF M/S.ANNAMALAI FINANCE LTD. CITED SUPRA. ALSO, WE FIND FORCE IN THE CONTENTION OF THE ASSESSEES COUNSEL THAT IT WAS ONLY A FAILURE O N THE PART OF THE TNEB (BUYER OF ELECTRICITY FROM THE ASSESSEE ) THAT THE ASSESSEE DID NOT PRODUCE ELECTRICITY FROM APRIL 24 TH TO AUGUST, 2004. IN THIS VIEW OF THE MATTER, FOLLOWING THE SIMILAR DECISION OF THE TRIBUNAL CITED SUPRA AND THE DECISIONS OF THE MADRAS HIGH COURT IN THE CASE OF V.RAMAKRISHNAN ITA NO.1571 & 1652/MDS/2008 14 & SONS LTD., AND IN THE CASE OF M/S. ANNAMALAI FINANCE LTD., CITED SUPRA, WE ARE DISMISSING THE REVENUES APPEAL. THUS, IN VIEW OF OUR AFORESAID FINDINGS AND RESPECT FULLY FOLLOWING THE ABOVE ORDERS OF THE CO-ORDINATE BENCH OF THE TRIBUNAL, WE HOLD THAT THE ASSESSEE IS ENTITLED FOR DEPRECIATION ON THE WINDMILL. FOR THE REASONS RECOR DED, THE APPEAL OF THE REVENUE IS DISMISSED. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED IN THE ABOVE TERMS AND THE APPEAL OF THE RE VENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THURSDAY THE 14 TH DAY OF JUNE, 2012 AT CHENNAI. SD/- SD/- ( DR. O.K.NARAYANAN ) ( VIKAS AWASTHY ) VICE PRESIDENT JUDICIAL MEMBER CHENNAI, DATED THE 14 TH JUNE, 2012. SOMU COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT (4) CIT(A) (5) D.R. (6) G.F .