Topaz Investments P. Ltd, Kolhapur V. Dy. CIT, Kolhapur

ITA 2299/PUN/2012

• Counselvise Citation: 229924514 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Assessee Lawyers: MAHENDRA MEHTA
• Keywords: Unexplained expenditure; Depreciation; Document seized
• Section: 69C; 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NOS. 2285 TO 2289 AND 2291/PN/2012 (ASST.YEARS : 2003-04 TO 2007-08 AND 2009-10) ACIT, CENTRAL CIRCLE, KOLHAPUR .. APPELLANT VS. TOPAZ INVESTMENTS PVT. LTD., PLOT NO.438, A/P. CHIPRI, JAYSINGPUR, DIST : KOLHAPUR .. RESPONDENT PAN NO.AAACT6999C C.O NOS.94 TO 99/PN/2013 (ASST. YEARS : 2003-04 TO 2007-08 AND 2009-10) TOPAZ INVESTMENTS PVT. LTD., PLOT NO.438, A/P. CHIPRI, JAYSINGPUR, DIST : KOLHAPUR .. CROSS OBJECTOR PAN NO.AAACT6999C VS. ACIT, CENTRAL CIRCLE, KOLHAPUR .. APPELLANT IN T HE APPEAL ITA NO.2299/PN/2012 (ASST. YEAR : 2008-09) TOPAZ INVESTMENTS PVT. LTD., PLOT NO.438, A/P. CHIPRI, TAL : SHIROL,DIST : KOLHAPUR .. APPELLANT PAN NO.AAACT6999C VS. DCIT, CENTRAL CIRCLE, KOLHAPUR .. RESPONDENT ASSESSEE BY : SHRI MAHENDRA MEHTA REVENUE BY : SHRI A.K. MODI DATE OF HEARING : 11-12-2013 DATE OF PRONOUNCEMENT : 30-12-2013 2 ORDER PER G.S. PANNU, AM : THE CAPTIONED APPEALS ARE FOR ASSESSMENT YEARS 200 3-04 TO 2009-10 RELATING TO THE SAME ASSESSEE AND INVOLVE CERTAIN C OMMON ISSUES. THEREFORE, THEY HAVE BEEN HEARD TOGETHER AND A CONS OLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. IN THE APPEALS PREFERRED BY THE REVENUE AND THE RESPECTIVE CROSS- OBJECTIONS OF THE ASSESSEE, AN ISSUE WHICH IS COMMO N, RELATES TO THE ALLOWANCE OF DEPRECIATION ON THE COST OF WIND MILL. THE AFORESAID ISSUE IS THE SOLITARY ISSUE IN THE APPEALS OF THE REVENUE FO R ASSESSMENT YEARS 2003- 04 TO 2007-08 AND FOR 2009-10 AS WELL AS IN THE RES PECTIVE CROSS-OBJECTIONS OF THE ASSESSEE BY WAY OF GROUND NO.2 AND BY WAY OF GROUND NO.1 IN ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09. ALL THE APPEALS OF THE REVENUE AND THE CROSS-OBJECTIONS/APPEAL OF THE ASSE SSEE ARE DIRECTED AGAINST A CONSOLIDATED ORDER OF THE CIT(A) KOLHAPUR DATED 21-09-2012, WHICH INTURN HAS ARISEN FROM THE RESPECTIVE ORDERS PASSED BY THE ASSESSING OFFICER U/S.143(3) R.W.S.153A(1)(B) OF THE ACT. 3. THE SUBSTANTIVE DISPUTE RELATES TO THE ALLOWANCE OF DEPRECIATION ON THE COMPONENT OF COST OF CIVIL WORKS IN THE TOTAL C OST OF WINDMILL, AND IT WAS A COMMON POINT BETWEEN THE PARTIES THAT A SIMIL AR DISPUTE WAS A SUBJECT MATTER OF CONSIDERATION BY THE PUNE BENCH OF THE TR IBUNAL VIDE ITS ORDER IN ITA NO.609 TO 614/PN/2013 & OTHERS DATED 29-11-2013 IN THE CASE OF M/S. EVERREADY INVESTMENT PVT. LTD., A CONCERN BELONGING TO THE ASSESSEE GROUP. 3 4. BEFORE WE PROCEED TO ADJUDICATE THE SPECIFIC CRO SS GRIEVANCES IN EACH OF THE ASSESSMENT YEARS, THE BROAD CONTOURS OF THE DISPUTE CAN BE SUMMARISED AS FOLLOWS. IN THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE ASSESSING OFFICER THAT ASSESSEE HAD CLAIMED DEPRECIATION @80% ON THE ENTIRE COST OF WINDMILL, EXCEPT THE COS T OF LAND. AS PER THE ASSESSING OFFICER, THE COMPONENT OF THE COST OF CIV IL WORK CONTAINED IN THE TOTAL COST OF WINDMILL WAS NOT ELIGIBLE FOR DEPRECI ATION @80%. THEREFORE, HE ALLOWED DEPRECIATION @10% ON THE COST OF CIVIL W ORKS, VIZ., BUILDINGS, CIVIL FOUNDATION, ROADS ETC. AND FOR THE BALANCE DE PRECIATION WAS ALLOWED @80%. THE CIT(A) HAS ALLOWED PARTIAL RELIEF IN AS MUCH, ACCORDING TO HIM, THE COST OF CIVIL FOUNDATION FOR THE WINDMILL WAS ELIGIBLE FOR DEPRECIATION @80% AND FOR BALANCE ITEMS OF CIVIL WO RKS HE UPHELD THE STAND OF THE ASSESSING OFFICER OF ALLOWING DEPRECIA TION @10%. FURTHER, IN CASES WHERE THE COST OF CIVIL FOUNDATION COULD NOT BE IDENTIFIED OUT OF THE TOTAL COST OF CIVIL WORK, THE CIT(A) DIRECTED THAT 40% OF THE TOTAL CIVIL WORKS COST BE ATTRIBUTED TO THE COST OF CIVIL FOUND ATION OF WIND MILL SO AS TO BE ELIGIBLE FOR DEPRECIATION @80% AND THE BALANCE 6 0% OF THE COST OF CIVIL WORKS WAS HELD LIABLE FOR DEPRECIATION @10% BEING B UILDINGS, ROADS ETC. IT IS AGAINST SUCH DECISION OF THE CIT(A) THAT REVENUE AS WELL AS THE ASSESSEE ARE BEFORE US BY WAY OF THE CAPTIONED PROCEEDINGS. 5. IN THE CASE OF M/S. EVERREADY INVESTMENTS PVT. L TD. (SUPRA) IT HAS BEEN HELD BY THE TRIBUNAL THAT THE COST OF CIVIL FO UNDATION FOR WINDMILLS IS ELIGIBLE FOR DEPRECIATION @80% FOLLOWING THE JUDGME NT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. COOPER FOU NDARY PVT. LTD. VIDE ITA NO.1326 OF 2010 DATED 14-06-2011 AS WELL AS THE DECISION OF THE PUNE 4 BENCH OF THE TRIBUNAL IN THE CASE OF AMINITY DEVELO PERS & BUILDERS VIDE ITA NO.1505/PN/2011 DATED 12-12-2012. THEREFORE, I N PRINCIPLE, THE ACTION OF THE CIT(A) IN ALLOWING DEPRECIATION @80% ON THE COST OF CONSTRUCTION OF FOUNDATION FOR WIND MILL IS HEREBY AFFIRMED. 6. WITH THIS BACKGROUND, WE MAY NOW TAKE UP THE SPE CIFIC DISPUTE IN EACH OF THE ASSESSMENT YEARS. IN ASSESSMENT YEAR 2 003-04, ASSESSEE ACQUIRED AND INSTALLED EIGHT WINDMILLS (TWO AT KATN ATAKA & SIX AT RAJASTHAN) COSTING RS.23,60,00,000/-. THE TOTAL CO ST OF TWO WINDMILLS IN KARNATAKA WAS RS.6,20,00,000/- WHICH INCLUDED THE C OST OF CIVIL WORK OF RS.20,00,000/- AND FOR THE SIX WIND MILLS AT RAJAST HAN TOTAL COST WAS RS.17,40,00,000/- INCLUSIVE OF THE COST OF CIVIL WO RK OF RS.1,20,00,000/-. ON THE COMPONENT OF THE COST OF CIVIL WORK, ASSESSI NG OFFICER ALLOWED DEPRECIATION @10% WHEREAS THE CIT(A) HELD THAT 40% OF SUCH COST WAS ATTRIBUTABLE TO THE CIVIL FOUNDATION FOR WINDMILL E LIGIBLE FOR DEPRECIATION @80% AND FOR THE BALANCE COST THE ACTION OF THE ASS ESSING OFFICER IN ALLOWING THE DEPRECIATION @10% WAS AFFIRMED. THE R EVENUE AS WELL AS THE ASSESSEE ARE IN APPEAL BEFORE US. 7. AT THE TIME OF HEARING, OUR ATTENTION WAS INVITE D TO PAGE 5 OF THE PAPER BOOK WHEREIN IS PLACED AN INVOICE DATED 28-09 -02 RAISED BY THE SUPPLIER OF WIND MILLS INSTALLED AT KARNATAKA, I.E. ENERCON INDIA LTD. AMOUNTING TO RS.20,00,000/-. A PERUSAL OF THE SAID INVOICE REVEALS THAT IT HAS TWO LIMBS. THE FIRST LIMB IS OF RS.12,00,000/- WHICH REFERS TO CIVIL WORK, INCLUDING FOUNDATION FOR WIND MILL, ETC. THE SECOND LIMB IS OF RS.8,00,000/- WHICH REFERS TO ERECTION AND COMMISSI ONING CHARGES FOR THE WIND MILL. THE ENTIRE INVOICE AMOUNT OF RS.20,00,0 00/- HAS BEEN TAKEN AS 5 COST OF CIVIL WORK. IN OUR VIEW, THE COST INCURRED FOR ERECTION AND COMMISSIONING CHARGES FOR THE WINDMILL CANNOT BE TR EATED AS A PART OF COST OF CIVIL WORK AND INSTEAD IT IS ELIGIBLE FOR DEPREC IATION @80%, FOLLOWING THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN T HE CASE OF DCIT VS. WESTERN PRECICAST PVT. LTD. VIDE ITA NO.890/PN/2011 DATED 31-12-2012. THUS, THE COST OF ERECTION AND COMMISSIONING CHARGE S AMOUNTING TO RS.8,00,000/- IS TO BE CONSIDERED AS AN INTEGRAL CO ST OF WINDMILL, WHICH IS ELIGIBLE FOR DEPRECIATION @80%. FURTHER, WITH REG ARD TO THE BALANCE INVOICE COST OF RS.12,00,000/- WHICH IS A COMPOSITE COST OF CIVIL WORK FOR THE ENTIRE WINDMILL INCLUSIVE OF THE COST OF FOUNDA TION OF WINDMILL, FOLLOWING THE DECISION IN THE CASE OF M/S. EVERREAD Y INVESTMENTS PVT. LTD. (SUPRA) 60% THEREOF IS TREATED AS ATTRIBUTABLE TO T HE COST OF CIVIL FOUNDATION FOR WIND MILL, WHICH SHALL BE ELIGIBLE FOR ALLOWANC E OF DEPRECIATION @80%, WHEREAS FOR THE BALANCE 40% OF THE COST, DEPRECIATI ON BE ALLOWED @10% TREATING THEM TO BE COST OF BUILDINGS, ROADS ETC. THUS, THE ORDER OF THE CIT(A) IS MODIFIED TO THE ABOVE EXTENT. 8. NOW, WITH REGARD TO THE SIX WINDMILLS INSTALLED AT RAJASTHAN, RS.1,20,00,000/- HAS BEEN CONSIDERED AS COST OF CIV IL WORKS, ETC. ON THE BASIS OF AN INVOICE DATED 31-03-2003 ISSUED BY M/S. ENERCON (INDIA) LTD. A COPY OF WHICH HAS BEEN PLACED IN THE PAPER B OOK AT PAGE 7. IT IS A COMPOSITE INVOICE RAISED BY THE SUPPLIER FOR CIVIL WORK INCLUSIVE OF FOUNDATION AS WELL ERECTION AND COMMISSIONING CHARG ES OF WIND TURBINE CONVERTOR, ETC. OSTENSIBLY, THE ENTIRE COST CANNOT BE TAKEN AS COST OF CIVIL WORKS SINCE IT INCLUDES ERECTION AND COMMISSIONING CHARGES. IN THE ABSENCE OF ANY BREAK-UP OF THE EXPENDITURE, IT WOULD BE IN FITNESS OF THINGS (BEING GUIDED BY THE RATIO OF ERECTION/COMMISSIONING CHARG ES, VIS-A-VIS CIVIL WORK 6 COST STATED BY SAME SUPPLIER IN RESPECT OF KARNATAK A WINDMILLS) THAT 40% OF THE TOTAL INVOICE OF RS.1,20,00,000/-, BEING AN AMO UNT OF RS.48,00,000/- IS TAKEN AS COST OF ERECTION & COMMISSIONING CHARGES, ELIGIBLE FOR DEPRECIATION @80%. THE BALANCE COST OF RS.72,00,00 0/- IS TAKEN AS COST OF CIVIL WORKS, AND FOLLOWING OUR DECISION IN EARLIER PARAGRAPH, 60% THEREOF, I.E. RS.43,20,000/- IS TAKEN AS COST OF CIVIL FOUND ATION FOR WINDMILL ELIGIBLE FOR DEPRECIATION @80%, AND THE BALANCE COST OF RS.2 8,80,000/- IS ALLOWED DEPRECIATION @10% TREATING IT TO BE COST OF BUILDIN GS, OTHER CIVIL WORK, ETC. 9. FOR THE ASSESSMENT YEAR 2003-04, THERE IS NO OTH ER DISPUTE IN RELATION TO THE ALLOWANCE OF DEPRECIATION ON WINDMILL. ACCO RDINGLY, THE ORDER OF THE CIT(A) IS SET-ASIDE AND THE ASSESSING OFFICER IS DI RECTED TO RECOMPUTE THE DEPRECIATION ON WINDMILL IN THE AFORESAID LIGHT. 10. THUS, IN SO FAR AS ASSESSMENT YEAR 2003-04 IS C ONCERNED, THE APPEAL OF THE REVENUE IS DISMISSED AND GROUND NO.2 IN THE CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. 11. IN THE APPEAL OF THE REVENUE AND GROUND NO.2 I N THE CROSS OBJECTION OF THE ASSESSEE FOR ASSESSMENT YEARS 2004 -05 AND 2005-06, THE ONLY DISPUTE RELATES TO THE DEPRECIATION ON THE WRI TTEN DOWN VALUE (I.E.WDV) OF THE WIND MILLS WHICH WERE INSTALLED IN ASSESSMENT YEAR 2003- 04 AND ACCORDINGLY THE ASSESSING OFFICER IS DIRECTE D TO RE-COMPUTE THE DEPRECIATION ALLOWABLE IN TERMS OF OUR DIRECTIONS I N THE EARLIER PARAGRAPHS IN RELATION TO ASSESSMENT YEAR 2003-04. ACCORDINGLY, THE APPEALS OF THE REVENUE FOR ASSESSMENT YEAR 2004-05 AND 2005-06 ARE DISMISSED AND GROUND NO.2 IN THE RESPECTIVE CROSS-OBJECTIONS OF T HE ASSESSEE ARE PARTLY ALLOWED. 7 12. NOW, WE MAY TAKE UP THE REVENUES APPEAL AND TH E GROUND NO.2 OF CROSS-OBJECTIONS OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2006-07. IN SO FAR AS THE DISPUTE RELATES TO THE ALLOWANCE OF DEPRECIA TION ON THE COMPONENT OF COST OF CIVIL WORK IN THE COST OF WINDMILL, IT IS S IMILAR TO THAT DECIDED BY US IN THE EARLIER PARAS FOR ASSESSMENT YEAR 2003-04 AN D THE ASSESSING OFFICER IS DIRECTED TO RECOMPUTE THE ALLOWANCE OF DEPRECIAT ION ACCORDINGLY. APART FROM THIS, THE ASSESSEE IS AGGRIEVED WITH THE STAND OF THE CIT(A) ON THE ALLOWANCE OF DEPRECIATION ON THE COST OF (I) INFRAS TRUCTURE CHARGES OF RS.37,50,000/-; (II) MEDA PROCESSING FEE RS.6,28, 750/-; (III) HIGH TENSION TRANSMISSION LINE RS.30,93,500/-; (IV) LA BOUR CHARGES FOR INSTALLATION RS.14,32,600/-; AND (V) LABOUR CHAR GES FOR TESTING RS.1,10,200/- INCLUDED IN THE TOTAL COST OF THE WIN DMILL. THE CLAIM OF THE ASSESSEE IS THAT IT SHOULD BE ALLOWED DEPRECIATION ON AFORESAID COSTS @80% AS THE SAME ARE AN INTEGRAL PART OF THE COST OF SET TING-UP OF THE WINDMILL. AT PAGES 11,12 AND 13 OF THE PAPER BOOK ARE COPIES OF INVOICES RAISED BY THE SUPPLIER OF THE WIND MILL, I.E. SUZLON INFRASTR UCTURE LTD. DATED 30-03- 2006 AND 31-03-2006 AMOUNTING TO RS.30,93,500/-, RS .14,32,600/- AND RS.1,10,200/- RESPECTIVELY. THESE COSTS ARE IN THE NATURE OF SUPPLY AND INSTALLATION OF HIGH TENSION TRANSMISSION LINES, LA BOUR CHARGES FOR ERECTION AND INSTALLATION OF WIND MILL; AND, LABOUR CHARGES FOR TESTING, COMMISSIONING OF THE WINDMILL ETC. IN OUR VIEW, SU CH COSTS ARE LIABLE TO BE TREATED AS AN INTEGRAL PART OF THE COST OF SETTING- UP OF THE WINDMILL AND IS ELIGIBLE FOR ALLOWANCE OF DEPRECIATION @80% FOLLOWI NG THE DECISION IN THE CASE OF WESTERN PRECICAST (SUPRA). AT THE TIME OF HEARING, IT WAS ALSO POINTED OUT BY THE LD. COUNSEL THAT THE ASSESSING O FFICER HAS HIMSELF 8 ALLOWED DEPRECIATION @80% ON SUCH COSTS IN THE ASSE SSEES CASE FOR ASSESSMENT YEAR 2003-04. THEREFORE, WE DEEM IT FIT AND PROPER TO DIRECT THE ASSESSING OFFICER TO RECOMPUTE DEPRECIATION ACCORDI NGLY. 13. ANOTHER COMPONENT OF DISPUTE IS WITH REGARD TO THE COST OF MEDA PROCESSING FEE OF RS.6,28,750/- INCURRED. ON THIS ASPECT THE ASSESSEE IS ELIGIBLE FOR THE DEPRECIATION @80% FOLLOWING THE DE CISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF POONAVALA FINV EST & AGRO PVT. LTD. VS. ACIT VIDE ITA NO.188/PN/2006 DATED 26-06-2008. SIMILARLY WITH REGARD TO THE COST OF RS.37,50,000/- BEING CONTRIBU TION TOWARDS COMMON POWER EVACUATION INFRASTRUCTURE FACILITY, THE SAME IS ENTITLED FOR THE HIGHER RATE OF DEPRECIATION @80% BEING AN INTEGRAL PART OF WIND MILL FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF POONAVALA F INVEST & AGRO PVT. LTD. (SUPRA) AND ALSO THE DECISION OF THE CHANDIGARH BEN CH OF THE TRIBUNAL IN THE CASE OF ACIT VS. RAKESH GUPTA VIDE ITA NO.822/A HD./2012 DATED 17- 06-2013 REPORTED IN 36 TAXMANN.COM 546. THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO RE-COMPUTE THE DEPRECIATION ACCORDIN GLY. 14. WITH REGARD TO THE COMPONENT OF CIVIL WORK COST IDENTIFIED BY THE CIT(A) AS COST OF CIVIL FOUNDATION FOR ALLOWING DEP RECIATION @80%, THE SAME IS MODIFIED IN LINE WITH THE DECISION OF THE P UNE BENCH IN THE CASE OF EVERREADY INVESTMENT PVT. LTD. (SUPRA), A GROUP CON CERN OF THE ASSESSEE, AND WHICH HAS BEEN FOLLOWED BY US IN THE ASSESSEES CASE FOR ASSESSMENT YEAR 2003-04 IN EARLIER PARAS. THE ASSESSING OFFIC ER IS DIRECTED TO RECOMPUTE THE DEPRECIATION ACCORDINGLY. 9 15. IN THE RESULT, THE REVENUES APPEAL FOR ASSESSM ENT YEAR 2006-07 IS DISMISSED AND GROUND NO.2 OF THE CROSS-OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. 16. FOR ASSESSMENT YEAR 2007-08, IN THE REVENUES A PPEAL AND GROUND NO.2 IN THE CROSS-OBJECTION OF THE ASSESSEE, THE IS SUES RAISED ARE SIMILAR TO THOSE CONSIDERED BY US IN APPEALS/CROSS-OBJECTION F OR ASSESSMENT YEARS 2003-04 AND 2006-07 IN THE EARLIER PARAGRAPHS. THE ASSESSING OFFICER IS DIRECTED TO RECOMPUTE THE DEPRECIATION ACCORDINGLY. THE APPEAL OF THE REVENUE IS DISMISSED AND GROUND NO.2 IN THE CROSS-O BJECTION IS PARTLY ALLOWED. 17. NOW, WE MAY TAKE UP REVENUES APPEAL AND GROUND NO.2 OF ASSESSEES CROSS OBJECTION FOR ASSESSMENT YEAR 2009 -10. IN THIS YEAR, ASSESSEE HAS NOT ACQUIRED OR INSTALLED ANY NEW WIND MILL AND THE CLAIM OF DEPRECIATION WAS WITH RESPECT TO THE WDV OF THE WIN DMILLS INSTALLED IN PAST YEARS CONSIDERED BY US IN EARLIER PARAGRAPHS. THER EFORE, OUR DECISION IN THE EARLIER YEARS SHALL BE FOLLOWED BY THE ASSESSING OF FICER IN ASSESSMENT YEAR 2009-10 TO RE-COMPUTE THE AMOUNT OF DEPRECIATION AL LOWABLE ON THE COST OF WIND MILL IN THIS YEAR TOO. THUS, THE APPEAL OF TH E REVENUE IS DISMISSED AND GROUND NO.2 OF ASSESSEES CROSS-OBJECTION IS PA RTLY-ALLOWED. 18. THUS, IN SO FAR AS THE APPEALS OF THE REVENUE F OR ASSESSMENT YEARS 2003-04 TO 2007-08 AND 2009-10 ARE CONCERNED, THE S AME ARE DISMISSED. 19. IN THE CROSS OBJECTIONS FILED BY THE ASSESSEE F OR ASSESSMENT YEARS 2003-04 TO 2007-08 AND 2009-10, A COMMON ISSUE HAS BEEN RAISED BY WAY OF GROUND NO.1, WHICH READS AS UNDER : 10 1. THE LD.CIT(A) ERRED IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN HOLDING THAT ALL ITEMS OF ADDITION HAVE TO BE SE PARATELY CONSIDERED BEFORE IT CAN BE HELD THAT A PARTICULAR ISSUE FALLS WITHIN TH E SCOPE OF SECTION 153A OR NOT. IT BE HELD THAT THE IMPUGNED ADDITIONS MADE A RE BEYOND THE SCOPE AND PROVISIONS OF SECTION 153A AS THEY ARE NOT BASED ON ANY SEIZED/INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. THE AFORESAID GROUND HAS NOT BEEN PRESSED AT THE TI ME OF HEARING AND IS ACCORDINGLY DISMISSED AS WITHDRAWN. 20. ACCORDINGLY, THE CROSS OBJECTIONS OF THE ASSES SEE FOR ASSESSMENT YEARS 2003-04 TO 2007-08 AND 2009-10 ARE PARTLY ALL OWED. 21. NOW, THE ONLY APPEAL LEFT FOR DETERMINATION IS THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2008-09, BEING ITA NO. 2299/PN/2012 WHICH IS ALSO DIRECTED AGAINST THE ORDER OF THE CIT(A) DA TED 21-09-2012 AND WHICH INTURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSE SSING OFFICER U/S.143(3) R.W.S. 153A(1)(B) OF THE ACT DATED 28-12-2010. 22. THE FIRST ISSUE IN THIS APPEAL IS WITH REGARD T O THE DEPRECIATION ON THE COST OF WIND MILL WHICH IS SIMILAR TO WHAT HAS BEEN ADJUDICATED BY US IN THE EARLIER PARAGRAPHS. THEREFORE, FOLLOWING OUR DECIS ION IN THE OTHER ASSESSMENT YEARS, THIS GROUND IS ALSO DISPOSED OF A CCORDINGLY AND THE ASSESSING OFFICER IS DIRECTED TO RE-COMPUTE THE DEP RECIATION FOLLOWING OUR DECISION IN THE AFORESAID PARAGRAPHS. THUS, ON THI S GROUND THE ASSESSEE PARTLY SUCCEEDS. 23. THE LAST AND SUBSTANTIVE GROUND RAISED BY THE A SSESSEE IS WITH REGARD TO THE ACTION OF THE CIT(A) IN SUSTAINING AN ADDITI ON OF RS.2,69,68,308/- MADE BY THE ASSESSING OFFICER INVOKING SECTION 69C OF THE ACT ON ACCOUNT OF UNEXPLAINED EXPENDITURE IN ACQUISITION OF LAND. 11 24. IN BRIEF, THE RELEVANT FACTS ARE THAT DURING TH E COURSE OF A SEARCH IN THE CASE OF ONE GHATGE PATIL AUTOMOBILES LTD. (HEREINAF TER REFERRED TO AS GPAL) IT WAS NOTICED THAT GPAL HAD SOLD A PLOT OF L AND SITUATED AT KOLHAPUR TO THE ASSESSEE COMPANY. THE RELEVANT SAL E DEED SHOWED A SALE CONSIDERATION OF RS.4,11,00,000/- WHEREAS AS PER TH E DOCUMENT SEIZED IN THE CASE OF GPAL THE CONSIDERATION FOR THE PLOT WAS SHO WN AT RS.6,80,68,308/-. THE ASSESSEE WAS CONFRONTED WITH THE SEIZED DOCUMEN T AND WAS ASKED TO EXPLAIN THE DIFFERENCE. NOT BEING SATISFIED WITH T HE EXPLANATION FURNISHED BY THE ASSESSEE, ASSESSING OFFICER CONCLUDED THAT T HE SAID DIFFERENTIAL AMOUNT WAS NOTHING BUT UNACCOUNTED FUNDS OF THE ASS ESSEE PAID FOR ACQUIRING THE PLOT OVER AND ABOVE THE STATED SALE C ONSIDERATION AND THEREFORE HE MADE AN ADDITION OF RS.2,69,88,308/- TO THE TOTA L INCOME OF THE ASSESSEE BY INVOKING SECTION 69C OF THE ACT. THE CIT(A) HAS ALSO SUSTAINED THE ADDITION, AGAINST WHICH THE ASSESSEE IS IN APPEAL B EFORE US. 25. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE POI NTED OUT THAT THERE WAS NO MATERIAL FOUND WITH THE ASSESSEE COMPANY TO SHOW THAT ANY CONSIDERATION WAS PAID BY IT OVER AND ABOVE THE AMO UNT RECORDED IN THE SALE DEED. THE LD. COUNSEL FURTHER POINTED OUT THAT MER ELY BECAUSE A DOCUMENT HAS BEEN FOUND IN THE CASE OF A SELLER, IT CANNOT I SPO-FACTO MEAN THAT ASSESSEE HAS PAID ANY AMOUNT OVER AND ABOVE THE STA TED CONSIDERATION, AND THAT THE ADDITION HAS BEEN WRONGLY SUSTAINED BY THE CIT(A). 26. AT THE TIME OF HEARING. IT WAS A COMMON POINT B ETWEEN THE PARTIES THAT THE ASSESSING OFFICER IN THE CASE OF THE ASSES SEE AS ALSO GPAL IS SAME; AND, IN THE HANDS OF GPAL ALSO A SIMILAR ADDITION O N ACCOUNT OF RECEIPT OF 12 UNACCOUNTED CONSIDERATION FOR SALE OF A PLOT TO ASS ESSEE HAS BEEN MADE ON THE BASIS OF THE MATERIAL SEIZED IN THE COURSE OF SEARCH ON GPAL. IN THIS VIEW OF THE MATTER, IT IS QUITE CLEAR THAT THE VERA CITY AND EFFICACY OF THE SEIZED DOCUMENT IN THE CASE OF GPAL HAS FORMED THE BASIS OF THE IMPUGNED ADDITION IN THE HANDS OF THE ASSESSEE AND THEREFORE THE ULTIMATE ADJUDICATION IN THE CASE OF GPAL WOULD BE DETERMINATIVE OF THE I SSUE IN THE CASE OF ASSESSEE TOO. OSTENSIBLY, THE IMPUGNED ADDITION IN THE HANDS OF THE ASSESSEE, BEING PURCHASER OF LAND, IS A MIRROR REFL ECTION OF WHAT IS ULTIMATELY CONCLUDED IN THE CASE OF GPAL QUA THE DO CUMENT FOUND FROM GPAL, WHICH AS PER THE REVENUE REVEALS TRANSACTION OF UNACCOUNTED MONEY. SINCE THE DOCUMENT HAS BEEN SEIZED FROM GPA L AND ADDITION HAS BEEN MADE IN THE CASE OF GPAL, THE AUTHENTICITY OR OTHERWISE OF THE DOCUMENT IS LIABLE TO BE FIRST ADJUDICATED IN THE C ASE OF GPAL. MOREOVER, AS PER THE LD. COUNSEL FOR THE ASSESSEE, THE ADDITI ON MADE BY THE ASSESSING OFFICER IN THE CASE OF GPAL IS STILL PERSISTING, NO T HAVING BEEN ALTERED BY ANY HIGHER AUTHORITY, THOUGH PENDING IN APPEAL. TH EREFORE, IT WAS PUT TO THE PARTIES IN THE COURSE OF HEARING THAT THE MATTER D ESERVES TO BE SET-ASIDE TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTIONS T HAT THE IMPUGNED ADDITION SHALL BE DEPENDENT ON WHAT IS ULTIMATELY HELD IN TH E CASE OF GPAL ON THIS ISSUE. THE AFORESAID MATRIX HAS NOT BEEN OPPOSED B Y THE PARTIES AND ACCORDINGLY THE MATTER IS RESTORED TO THE FILE OF T HE ASSESSING OFFICE TO EFFECTUATE THE ABOVE. THUS, ON THIS ASPECT THE ASS ESSEE HAS TO FAIL. 27. THUS, FOR STATISTICAL PURPOSES THE APPEAL OF TH E ASSESSEE FOR ASSESSMENT YEAR 2008-09 IS PARTLY ALLOWED. 13 28. IN THE RESULT, THE CAPTIONED APPEALS AND CROSS- OBJECTIONS ARE ACCORDINGLY DISPOSED OFF. PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER, 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEM BER PUNE, DATED : 30 TH DECEMBER, 2013 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A), KOLHAPUR 4. THE CIT, KOLHAPUR 5. D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE