Basic Wind Energy Pvt.Ltd., Ahmedabad V. The Income tax Officer,Ward-1(2), Ahmedabad

ITA 2334/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94516 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 05-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 15-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Depreciation
• Section: 133(6)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , , BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.2334/AHD/2011 ( / ASSESSMENT YEAR : 2008-09) BASIC WIND ENERGY PVT.LTD. 11/12, TEJDHARA BUNGALOW- PART-II, B/H.RAHUL TOWER 100FT.SATELLITE ROAD AHMEDABAD / VS. THE ITO WARD-1(2) AHMEDABAD ' ./ ./ PAN/GIR NO. : AACCB 5461 B ( '% / APPELLANT ) .. ( &''% / RESPONDENT ) '% ( / APPELLANT BY : -NONE- &''% ) ( / RESPONDENT BY : SHRI DINESH SINGH, SR.DR * ) / DATE OF HEARING 05/10/2015 +,-. ) / DATE OF PRONOUNCEMENT 15/10/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-VI, AHMEDABA D [CIT(A) IN SHORT] DATED 08/07/2011 PERTAINING TO ASSESSMENT Y EAR (AY) 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF A PPEAL:- ITA NO. 2334/AH D/2011 BASIC WIND ENERGY PVT.LTD. VS. ITO ASST.YEAR 2008-09 - 2 - 1. THE LEANED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN FACTS AND LAW BY DISALLOWING THE DEPRECIATION CLAIMED ON WIND MIL L TO THE EXTENT OF RS.32,00,000/-. 2. THE LEARNED CIT() HAS ERRED IN LAW AND FACTS BY DIS ALLOWING THE INTEREST EXPENSES OF RS.37,866/- ON ACCOUNT OF NON-DEDUCTION OF TDS. 3. THE APPELLANT RESERVES ITS RIGHTS TO ADD, ALTER OR OMIT ANY OF THE GROUNDS OF THE APPEAL. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE THE SERVICE OF NOTICE ON VARIOUS DATES TO THE ASSESSEE. THIS APPE AL WAS ORIGINALLY FIXED ON 05/03/2015. VIDE LETTER DATED 03/03/2015, THE A SSESSEE SOUGHT ADJOURNMENT ON THE GROUND THAT THE ASSESSEE IS IN T HE PROCESS OF COLLECTING SOME ADDITIONAL DATA. ON THE REQUEST OF THE ASSESSEE, THE APPEAL WAS FIXED FOR HEARING ON 11/05/2015. THE AP PEAL WAS FURTHER ADJOURNED TO 30/06/2015. ON 30/06/2015, YET AGAIN, THE ASSESSEE REQUESTED FOR ADJOURNMENT ON THE GROUND THAT THE AU THORIZED REPRESENTATIVE OF THE ASSESSEE-COMPANY WAS OUT OF S TATION. THE APPEAL WAS ADJOURNED ON 12/08/2015. ANOTHER APPLICATION W AS FILED ON THE DATE FIXED, I.E. ON 12/08/2015 SEEKING ADJOURNMENT ON BE HALF OF THE ASSESSEE- COMPANY. ON THE LAST DATE OF HEARING, AN OPPORTUNI TY WAS GRANTED AND THE APPEAL WAS ADJOURNED TO 05/10/2015. ON THE DAT E FIXED FOR HEARING, NEITHER ANY PERSON APPEARED ON BEHALF OF THE APPELL ANT NOR ANY APPLICATION SEEKING ADJOURNMENT HAS BEEN FILED. FR OM THE RECORD, IT IS EVIDENT THAT THE ASSESSEE HAS BEEN GIVEN SUFFICIENT OPPORTUNITY TO REPRESENT ITS CASE. THEREFORE, WE PROCEED TO DECID E THE APPEAL IN THE ABSENCE OF THE APPELLANT-ASSESSEE ON THE BASIS OF M ATERIAL AVAILABLE ON RECORD. ITA NO. 2334/AH D/2011 BASIC WIND ENERGY PVT.LTD. VS. ITO ASST.YEAR 2008-09 - 3 - 3. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 23/12/2010, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE TW O DISALLOWANCES OF INTEREST EXPENDITURE BY INVOKING P ROVISIONS OF SECTION 40(A)(IA) OF THE ACT, AND OF DEPRECIATION ON WIND-M ILL. 4. FIRST GROUND OF THIS APPEAL IS AGAINST DISALL OWING THE DEPRECIATION CLAIMED ON WIND MILL TO THE EXTENT OF RS.32 LACS. THE LD.SR.DR VEHEMENTLY ARGUED THAT THE ORDERS OF THE AUTHORITIE S BELOW IS IN ACCORDANCE WITH LAW AND SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE REVENUE BY THE DECISION OF THE COORDI NATE BENCH (ITAT B BENCH AHMEDABAD) IN THE CASE OF BESTO TRADELINK PVT.LTD. VS. ASST.CIT IN ITA NO.502/AHD/2005 FOR AY 2001-02, DAT ED 23/10/2009. HE DREW OUR ATTENTION TOWARDS ASSESSMENT ORDER AT P ARA NOS.9 & 10 AND ALSO AT PARA-3.3 OF THE APPELLATE ORDER. 5. HAVING HEARD THE LD.SR.DR AND PERUSING THE MATER IAL AVAILABLE ON RECORD, WE FIND THAT THE AO IN PARA NOS.9 & 10 HAS GIVEN A FINDING ON FACT IN THE FOLLOWING TERMS: 9 THE ASSESSEE'S SUBMISSION HAS BEEN CONSIDERED. T HE ASSESSEE HAS MENTIONED SEVERAL CASE LAWS IN ITS SUBMISSION HOWEV ER, BEFORE APPLICATION OF ANY CASE LAWS, IT IS ESSENTIAL TO AN ALYSE THE FACTS OF THE CASE AND UNVEIL THE ENTIRE TRANSACTION. AFTER EXAMI NING THE DETAILS SUBMITTED BY THE ASSESSEE AND THE INFORMATION GATHE RED DURING THE ITA NO. 2334/AH D/2011 BASIC WIND ENERGY PVT.LTD. VS. ITO ASST.YEAR 2008-09 - 4 - COURSE OF ASSESSMENT PROCEEDINGS, SEVERAL IMPORTANT FACTS EMERGE, WHICH NEEDS TO BE MINUTELY APPRECIATED. THEY ARE SU MMARIZED AS UNDER: I. THE ASSESSEE HAS CLAIMED TO HAVE PURCHASED THE W IND MILL ON 28/3/2008 FROM INDIA WINDPOWER LIMITED. IT IS NOT ICED THAT INDIA WINDPOWER LIMITED PURCHASED SIX WINDMILLS FRO M INDOWIND ENERGY LIMITED ON 28/3/2008 AND HAS SOLD O NE WINDMILL TO THE ASSESSEE COMPANY ON THE SAME DAY IT SELF ,I.E. 28/3/2008. II. THE TOTAL COST OF THE WIND MILL IS SHOWN AS RS . 80 LAKHS. THE ASSESSEE COMPANY HAS MADE PAYMENT OF ONLY RS.20 LAC S TOWARDS THE WIND MILL. WHEREAS, THE REMAINING AMOUNT OF RS. 58,33,660/- IS SHOWN AS CURRENT LIABILITY AND IS OUTSTANDING AT THE END OF THE FINANCIAL YEAR AS PAYMENT HAS NOT BEEN MADE TO INDI A WIND POWER LTD. III. IN ORDER TO CARRY OUT VERIFICATION IN THIS REGARD, LETTER U/S 133(6) DATED 10/12/2010 WAS ISSUED TO INDIA WINDPOW ER LIMITED, AHMEDABAD. IN COMPLIANCE WITH THE REQUIREM ENTS OF THE SAID LETTER, IT HAS BEEN STATED THAT THE SAID COMPA NY PURCHASED SIX WIND MILLS FROM INDOWIND ENERGY LIMITED, OUT OF WHICH 4 WERE CAPITALIZED AND THE REMAINING TWO WIND MILLS W ERE SOLD BY IT, ONE OF WHICH IS SOLD TO THE ASSESSEE COMPANY. I N SUPPORT, IT HAS SUBMITTED A COPY OF THE INVOICE WITH RESPECT TO PURCHASE OF WIND MILL BY IT FROM INDOWIND ENERGY LIMITED. AS RE GARDS, THE SALE OF WINDMILL BY IT TO THE ASSESSEE, THE SAID PA RTY HAS SUBMITTED A COPY OF INVOICE WHEREIN, THE ASSESSEE'S NAME APPEARS AS CONSIGNEE OF THE WINDMILL. ON VERIFYING THE FIRS T INVOICE OF PURCHASE BY INDIA WIND POWER LIMITED, IT IS NOTICED THAT THERE IS A CLEAR MENTION THEREIN UNDER TERMS AND CONDITIONS ' THAT TILL THE FULL AND FINAL PAYMENT IS RECEIVED BY IT INCOME OUT OF POWER GENERATION WILL BE IN THE HANDS OF THE SELLER, I.E. INDOWIND ENERGY LIMITED, IN THIS CASE. SINCE THE ASSESSEE IS SHOWN AS A CONSIGNEE OF THE SAME TRANSACTION, THE TERMS AND CO NDITION OF THE INITIAL INVOICE WILL NATURALLY BE APPLICABLE ON THE ASSESSEE ALSO. ITA NO. 2334/AH D/2011 BASIC WIND ENERGY PVT.LTD. VS. ITO ASST.YEAR 2008-09 - 5 - IV. AS DISCUSSED AT II, ABOVE, AS PER THE BALAN CE-SHEET OF THE ASSESSEE, THE ASSESSEE HAS NOT MADE FULL PAYMENT TO WARDS THE WINDMILL. AT THE END OF THE FINANCIAL YEAR, OUTSTAN DING LIABILITIES TOWARDS PURCHASE OF WIND MILL IS RS.58,33,660/-. TH EREFORE, EFFECTIVELY AS PER THE TERMS AND CONDITIONS OF THE TRANSACTION, THE OWNERSHIP HAS NOT BEEN EFFECTIVELY TRANSFERRED TO T HE ASSESSEE AND ANY INCOME OUT OF GENERATION OF THE WINDMILL IS TO BE TREATED AS INCOME IN THE HANDS OF THE SELLER OF THE WINDMIL L, INDOWIND ENERGY LIMITED, IN THIS CASE. FURTHER, IN SUPPORT OF GENERATION OF ELECTRICITY, T HE ASSESSEE HAS SUBMITTED COPY OF KARNATAKA POWER TRANSMISSION CORP ORATION GENERATION REPORT. ON CAREFUL EXAMINATION OF THE SA ME SEVERAL DISCREPANCIES ARE NOTICED IN IT. THEY ARE AS UNDER : A. IT IS NOTICED THAT THE NAME OF CONCERN ON THE S AID GENERATION REPORT IS RPG CABLES LTD. THE REPORT ALS O SHOWS THAT THE WIND FARM IN-CHARGE IS M/S RPG CABLES LTD.LT DO ES NOT CONTAIN NAME OF THE ASSESSEE OR INDIAWIND POWER LTD FROM WHO THE ASSESSEE CLAIMED TO HAVE PURCHASED THE WIND MIL L. B. THE POWER GENERATION REPORT PERTAINS TO CERTAIN WIND MILLS, 6 IN NUMBER, OF CAPACITY OF 320 KW. THERE IS NO EVIDENCE ON RECORD TO THE FACT THAT ONE OF THE WIND MILLS ME NTIONED IN THE REPORT PERTAINS TO THE ASSESSEE AS CLAIMED BY IT. C. THE REPORT PERTAINS TO THE MONTH OF APRIL 2008 AND IT DOES NOT PROVE THAT THERE WAS INDEED ANY POWER GENERATION DU RING THE MONTH OF MARCH, 2008, AS CLAIMED BY THE ASSESSEE. D. THE SOLE BASIS OF CLAIMING THE POWER GENERATION AND ITS CREDIT BY THE ASSESSEE IS THE CREDIT NOTE ISSUED BY THE CONCERN INDIA WINDPOWER LTD. IN FACT AS PER THE REPORT OF K ARNATAKA POWER TRANSMISSION CORPORATION GENERATION OF POWER HAS NEVER OCCURRED TO THE SAID CONCERN IN THE MONTH OF MARCH 2008. THE AMOUNT OF RS.2090/- IS ONLY THE CREDIT NOTE ISSUED BY THE SELLER INDIA WINDPOWER LTD AND NOT ANY CREDIT RECEIVED FRO M ITA NO. 2334/AH D/2011 BASIC WIND ENERGY PVT.LTD. VS. ITO ASST.YEAR 2008-09 - 6 - KARNATAKA POWER TRANSMISSION CORPORATION, THE AGENC Y RESPONSIBLE TO GENERATE ELECTRICITY. 10. IN VIEW OF THE ABOVE FACTS, IT IS HELD THAT T HERE IS NO EFFECTIVE TRANSFER OF WINDMILL TO THE ASSESSEE. IT IS ALSO HE LD THAT THERE IS NO GENERATION OF ELECTRICITY IN THE HANDS OF THE ASSES SEE AND ACCORDINGLY, NO INCOME HAS BEEN ACCRUED IN ITS HANDS ON ACCOUNT OF POWER GENERATION. THE CASE LAWS REFERRED BY THE ASSESSEE HAS NO APPLICATI ON IN THE CASE IN VIEW OF THE FACT THAT , I) THE ASSESSEE DID NOT PRODUCE ANY RELIABLE DOCU MENTARY EVIDENCE WITH RESPECT TO ACTUAL TRANSFER OF WIND MILL, II) FULL PAYMENT HAS NOT BEEN MADE AND ALSO III) THERE IS NO CREDIBLE EVIDENCE OF GENERATION OF POWER FROM THE WIND MILL AS CLAIMED BY IT. THEREFORE THE DEPRECIATION OF RS.32,00,000/- CLAIME D BY THE ASSESSEE COMPANY IS DISALLOWED. DISALLOWANCE OF DEPRECIATION : RS.32,00,000/- 5.1. FROM THE ABOVE FINDING OF THE AO, IT IS CLEAR THAT THE ASSESSEE HAD NOT PAID THE ENTIRE SALE CONSIDERATION. AS PER THE REPORT, SUBMITTED BY THE ASSESSEE, OF KARNATAKA POWER TRANSMISSION CORPORATI ON GENERATION, M/S.RPG CABLES LTD. SHOWN AS THE INCHARGE OF THE WI ND FARM. THE LD.CIT(A) HAS CONFIRMED THE FINDING OF THE AO, BY O BSERVING AS UNDER:- 3.3 I HAVE CONSIDERED THE FACTS OF THE CASE; ASS ESSMENT ORDER AND APPELLANT'S SUBMISSION. THE BASIC FACT IS THAT APPELLANT CLAIMED TO HAVE PURCHASED A WINDMILL FROM A COMPANY WHO IN TURN PUR CHASED SIX WINDMILLS FROM ANOTHER COMPANY WHO PURCHASED THE SA ME FROM RPG CABLES LTD WHO WAS THE POWER PRODUCER AS PER RECORD S OF KARNATAKA POWER TRANSMISSION CORPORATION. IN THE RECORDS OF KARNATAKA POWER TRANSMISSION CORPORATION, SIX WINDMILLS CLAIMED TO HAVE BEEN ITA NO. 2334/AH D/2011 BASIC WIND ENERGY PVT.LTD. VS. ITO ASST.YEAR 2008-09 - 7 - PURCHASED BY INDIA WIND POWER LTD AND IN TURN SOLD TO ANOTHER COMPANY BEFORE SELLING ONE WINDMILL TO THE APPELLAN T REMAINED IN THE NAME OF RPG CABLES LTD ONLY AND IT IS CONFIRMED BY THE APPELLANT THAT TILL DATE WINDMILL WAS NOT TRANSFERRED IN ITS NAME AND IT STILL CONTINUES IN THE NAME OF RPG CABLES LTD. WINDMILL UNIT IS NOT A MOVABLE ASSET WITHOUT ANY REGULATION THAT IT CAN BE TRANSFERRED J UST BY PREPARING SALES INVOICE OR RECEIVING PART PAYMENT ON SUCH SALES INV OICE. APPELLANT HAS ONLY PAID PART PAYMENT IN RESPECT OF SALES INVOICE FOR ONE WINDMILL. APART FROM THIS THERE IS NO DOCUMENTARY OR OTHER EV IDENCE TO PROVE THE OWNERSHIP AND DOMINION OR CONTROL OF THE WINDMILL R EGISTERED IN THE NAME OF RPG CABLES LTD. FACTS OF THE CASE HAS BEEN DISCUSSED IN DETAIL BY THE ASSESSING OFFICER. IN THE SIMILAR FACTS, JUR ISDICTIONAL 1TAT IN THE CASE OF BESTO TRADE LINKS PRIVATE LTD, IT NUMBER 50 2/AHD/2005 DATED 23-10-2009 HELD AS UNDER- 'IT IS AGREED BY BOTH THE PARTIES THAT WINDMILL IN QUESTION CANNOT BE TRANSFERRED UNLESS THE PERMISSION OF APPROPRIATE AUTHORITIES ARE OBTAINED. ADMITTEDLY IN THIS CASE NO PERMISSION WAS GIVEN. THUS THE ASSESSEE COMPANY NEVER ACQUIRED THE T ITLE OR BECAME THE OWNER OF THE WINDMILL IN QUESTION. HONOU RABLE SUPREME COURT IN THE CASE OF TAMIL NADU CIVIL SUPPL IES CORPORATION LTD, 249 ITR 214 HELD THAT UNLESS THE A SSESSEE BECOME OWNER OF THE MILL, IT IS NOT ENTITLED TO DEP RECIATION AND DEVELOPMENT DEBATE. IT WAS HELD IN THE DECISION THAT 'AFFIRMING THE DECISION OF HIGH COURT THAT ON THE F ACTS FOUND, IT WAS NOT POSSIBLE TO REACH THE CONCLUSION THAT ASSES SEE HAD ACQUIRED DOMINION OVER THE MILLS IN QUESTION'. IN T HIS CASE ALSO, THE ASSESSEE COMPANY NEVER ACQUIRED DOMINION OVER W INDMILLS AND THEREFORE IT IS NOT ENTITLED TO DEPRECIATION . IN THIS CASE ALSO, APPELLANT COULD NOT OBTAIN THE P ERMISSION FROM KARNATAKA POWER TRANSMISSION CORPORATION AND THEREF ORE THE TRANSACTION REMAINED ON PAPER ONLY. EVEN APPELLANT DID NOT MAKE FULL PAYMENT FOR THE TRANSACTION WHICH WAS REQUIRED AS P ER THE TERMS OF PURCHASES BY THE SELLER. SINCE APPELLANT DID NOT OB TAIN DOMINION OVER THE WINDMILL, IT IS NOT ENTITLED TO CLAIM DEPRECIAT ION ON THE SAME. THE GENERATION OF ELECTRICITY BY THE WINDMILL STANDING IN THE NAME OF RPG ITA NO. 2334/AH D/2011 BASIC WIND ENERGY PVT.LTD. VS. ITO ASST.YEAR 2008-09 - 8 - CABLES LTD CANNOT ENTITLE APPELLANT TO CLAIM DEPREC IATION. SINCE THE DECISION OF HONOURABLE SUPREME COURT IN THE CASE OF MYSORE MINERALS LTD IS DISTINGUISHED BY THE HIGHER BENCH OF THE SAM E COURT IN THE CASE OF TAMIL NADU CIVIL SUPPLIES CORPORATION LTD DISCUSSED EARLIER IN THE DECISION OF JURISDICTIONAL TRIBUNAL, THIS DECISION DOES NOT HELP THE APPELLANT. CONSIDERING THE FACTS OF THE CASE I'M OF THE CLEAR VIEW THAT APPELLANT DID NOT ACQUIRE DOMINION OR CONTROL OVER THE WINDMILL AND IT WAS NOT A LEGAL OWNER OF THE SAME AND ACCORDINGLY N OT ENTITLED TO CLAIM DEPRECIATION. THE CLAIM IS ACCORDINGLY REJECTED BY THE AO AND HENCE THE DISALLOWANCE IS CONFIRMED. 5.2. FROM THE ABOVE FINDING OF THE LD.CIT(A), IT IS EVIDENT THAT THE LD.CIT(A) HAS FOLLOWED THE DECISION OF THE COORDINA TE BENCH OF THIS TRIBUNAL IN ITA NO.502/AHD/2005 FOR AY 2001-02 IN T HE CASE OF BESTO TRADELINK PVT.LTD. VS. ACIT, DATED 23/10/2009, HAD HELD AS UNDER:- 14. AFTER HEARING BOTH THE SIDES, WE HAVE CAR EFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AS WELL AS VARIOUS DETAILS AND DOCUMENTS SUBMITTED BEFORE US. FROM THE PERUSAL OF MOU, IT IS CLEAR THAT AS PER CLAUSE (D), THE ASSESSEE-COMPANY WAS REQUIRED TO AP PLY TO APPROPRIATE AUTHORITY ON OR BEFORE 31 ST MAY, 2000. THE ASSESSEE (AS PER MOU) ASSURED THE SECOND PARTY (M/S. PEARL ENERGY & INFRA STRUCTURE) TO ARRANGE FOR NECESSARY TRANSFER WITHIN A PERIOD OF 9 0 DAYS FROM THE DATE OF SUBMISSION OF APPLICATION TO THE CONCERNED AUTHO RITIES. ADMITTEDLY, NO PERMISSION WAS GRANTED. IT IS AGREED BY BOTH THE PARTIES THAT WINDMILL IN QUESTION CANNOT BE TRANSFERRED UNLESS T HE PERMISSION OF APPROPRIATE AUTHORITY IS OBTAINED. ADMITTEDLY IN TH IS CASE, NO PERMISSION WAS GIVEN. IN THESE CIRCUMSTANCES, IN OU R CONSIDERED OPINION, THE SAID MOU (AGREEMENT) BECAME UNENFORCEA BLE AND VOID. THUS, THE ASSESSEE-COMPANY NEVER ACQUIRED THE TITLE OR BECAME THE OWNER OF WINDMILLS IN QUESTION. THE HON'BLE SUPREME COURT IN THE CASE OF TAMIL NADU CIVIL SUPPLIES CORPORATION LTD. -VS.- CIT (2001) 249 ITR 214 (SC), UNLESS THE ASSESSEE BECAME OWNER OF MILL, IT IS NOT ENTITLED TO DEPRECIATION AND DEVELOPMENT REBATE. IN THAT CASE, CERTAIN GOVERNMENT ITA NO. 2334/AH D/2011 BASIC WIND ENERGY PVT.LTD. VS. ITO ASST.YEAR 2008-09 - 9 - ORDERS WERE ISSUED IN 1972 VESTING POSSESSION OF 13 MILLS WITH THE ASSESSEE. BUT THE SALE DEEDS IN RELATION THERETO WE RE EXECUTED IN 1978. THE ASSESSEE CLAIMED DEPRECIATION AND DEVELOPMENT R EBATE IN RELATION TO THE 13 MILLS FOR THE ASSESSMENT YEARS 1973-74 AN D 1974-75. THE ITO REJECTED THE CLAIM ON THE GROUND THAT THE ASSESSEE HAD NOT BECOME THE OWNER IN LAW. THE FIRST APPELLATE AUTHORITY AND THE TRIBUNAL UPHELD THE ORDER OF A.O. THE HON'BLE HIGH COURT, ON A REFERENC E, HELD THAT THE ASSESSEE HAD NOT BECOME THE LEGAL OWNER OF THE 13 M ILLS IN 1972 AND UPHELD THE DENIAL OF DEPRECIATION AND DEVELOPMENT R EBATE [1997] (228 ITR 399). ON APPEAL TO THE HON'BLE SUPREME COURT, I T WAS HELD THAT 'AFFIRMING THE DECISION OF THE HIGH COURT, THAT ON THE FACTS FOUND, IT WAS NOT POSSIBLE TO REACH THE CONCLUSION THAT THE ASSES SEE HAD ACQUIRED DOMINION OVER THE MILLS IN QUESTION'. IN THE CASE B EFORE US ALSO, THE ASSESSEE-COMPANY NEVER ACQUIRED DOMINION OVER THE W IND MILLS, THEREFORE, IT IS NOT ENTITLED TO DEPRECIATION @ 100 % AS CLAIMED IN THE ASSESSMENT YEAR 2001-02. WITH REGARD TO CONTENTION OF THE ASSESSEE TO EXCLUDE ENERGY CHARGES RECEIVED AMOUNTING TO RS.9,4 4,745/-, IT IS PERTINENT TO NOTE THAT THIS INCOME HAS EARNED BY TH E ASSESSEE IN LIEU OF RS.2.40 CRORES, WHICH WAS GIVEN TO M/S. PEARL ENERG Y & INFRASTRUCTURE.; WHATEVER MAY BE THE NATURE OF THE INCOME, THE REAL INCOME IS TAXABLE IN THE HANDS OF ASSESSEE. IN VIEW OF THIS, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS LEGALLY AND FACTUALLY CORREC T IN UPHOLDING THE ACTION OF A.O. DISALLOWING THE DEPRECIATION. GROUND NO. 1 OF ASSESSEE'S APPEAL IN ITA NO. 502/AHD./2005 FOR THE ASSESSMENT YEAR 2001-02 IS DISMISSED. 5.3. SINCE THE FACTS OF THE PRESENT CASE ARE IDENTI CAL TO THE FACTS AS WERE BEFORE THE COORDINATE BENCH IN THE CASE OF BESTO TR ADELINK PVT.LTD.(SUPRA), THEREFORE TAKING A CONSISTENT VIEW , WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF THE LD.CIT(A) , SAME IS HEREBY UPHELD. THUS, GROUND NO.1 OF ASSESSEES APPEAL IS DISMISSED. ITA NO. 2334/AH D/2011 BASIC WIND ENERGY PVT.LTD. VS. ITO ASST.YEAR 2008-09 - 10 - 6. SECOND GROUND OF THIS APPEAL IS AGAINST DISALLOW ANCE OF INTEREST EXPENDITURE OF RS.37,866/- ON ACCOUNT OF NON-DEDUCT ION OF TDS. THE LD.SR.DR SUPPORTED THE ORDER OF THE AO. 7. HAVING HEARD THE LD.SR.DR AND LOOKING TO THE FAC TS OF THE CASE, WE FIND THAT THE AO IN PARA-4 OF HIS ORDER HAS OBSERVE D THAT NO TDS WAS DEDUCTED IN THE CASE OF MR.LAXMICHAND S.CHHEDA ON I NTEREST PAYMENT OF RS.37,866/-. THE AO DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE ON THE BASIS THAT THE ASSESSEE-COMPANY HAD FAILED TO F URNISH THE PROOF FOR FILING THE FORM 15H BEFORE CIT(TDS) WHICH IS MANDAT ORY FOR NON- DEDUCTION OF THE ASSESSEE-COMPANY. THE LD.CIT(A) C ONFIRMED THE FINDING OF THE AO ON THE GROUND THAT NO FORM 15H WA S FURNISHED. WE FIND NEITHER BEFORE THE ASSESSING AUTHORITY NOR BEF ORE THE APPELLATE AUTHORITY, THE ASSESSEE HAD FURNISHED THE PROOF OF REQUISITE FORM 15H. EVEN BEFORE THE LD.CIT(A), IT WAS CONTENDED BY THE ASSESSEE THAT THE FORM 15H RECEIVED FROM THE RECIPIENT WAS NOT FORWAR DED TO CIT(TDS) AS REQUIRED UNDER THE ACT. SINCE THE ASSESSEE FAILED TO FURNISH THE REQUISITE FORM 15H, THEREFORE, WE DO NOT SEE ANY REASON TO IN TERFERE WITH THE ORDER OF THE LD.CIT(A), SAME IS HEREBY UPHELD. THUS, GR OUND NO.2 OF ASSESSEES APPEAL IS DISMISSED. 8. GROUND NO.3 IS GENERAL IN NATURE WHICH REQUIRE S NO INDEPENDENT ADJUDICATION. ITA NO. 2334/AH D/2011 BASIC WIND ENERGY PVT.LTD. VS. ITO ASST.YEAR 2008-09 - 11 - 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 25 TH DAY OF OCTOBER, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 15/ 10 /2015 2.., .../ T.C. NAIR, SR. PS !'#$%&' &$ / COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &''% / THE RESPONDENT. 3. 345 6 / CONCERNED CIT 4. 6 ( ) / THE CIT(A)-VI, AHMEDABAD 5. 7 8 &45 , 45. , 3 / DR, ITAT, AHMEDABAD 6. 8:; <* / GUARD FILE. ! / BY ORDER, '7 & //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 14.10.15 (DICTATION-PAD 9 +PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 14/10/15 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.15.10.2015 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15.10.2015 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER