DCIT, CHENNAI V. Ashok Leyland Wind Energy Ltd., CHENNAI

ITA 326/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4322 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 06-02-2017
• Court: TRIBUNAL
• Department Lawyers: RENGARAJ
• Assessee Lawyers: A B KANNAN
• Keywords: Capital asset; Depreciation; Competent authority; Onus to prove

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI , ! ' ! # . $% & '( BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO.326/MDS./2017 / ASSESSMENT YEAR : 2012-13 THE DCIT, CORPORATE CIRCLE 1(1), CHENNAI-34 VS. M/S.ASHOK LEYLAND WIND ENERGY LTD ., NO.1,SARDAR PATEL ROAD, GUINDY, CHENNAI 600 032 [PAN AAICA 8787 F] ( )* / APPELLANT) ( +,)* /RESPONDENT) / APPELLANT BY : MR.RENGARAJ, CIT, D.R /RESPONDENT BY : MR.A.B.KANNAN, C.A / DATE OF HEARING : 09 - 05 - 2017 / DATE OF PRONOUNCEMENT : 02.06 - 2017 - / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-1, CHENNA I DATED 09.11.2016 PERTAINING TO ASSESSMENT YEAR 2012-13. 2. THE REVENUE RAISED THE FOLLOWING GROUNDS FOR OU R ADJUDICATION. ITA NO326/MDS./2017 :- 2 -: 1. THE ORDER OF THE LEARNED CIT(A) IS CONTRARY TO L AW, FACTS AND CIRCUMSTANCES OF THE CASE. 2.1 THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSES SING OFFICER TO ALLOW DEPRECIATION ON THE WINDMILLS, WHOSE OWNERSHIP IS N OT PROVED WITH EVIDENCE, WITHOUT APPRECIATING THE FACT THAT THE CHANGE OF NA ME TO BE ISSUED BY THE GOVERNMENT AUTHORITY M/S. TANGEDCO AND TRANSFER OF LAND IN WHICH THE WIND MILLS ARE ERECTED TO BE REGISTERED BY THE SUB REGISTRAR ARE NOT FURNISHED BY THE ASSESSEE AND IN THE ABSENCE OF SUC H VALID DOCUMENTS ISSUED BY THE COMPETENT GOVERNMENT AUTHORITIES, THE OWNERSHIP OF THE WINDMILLS CANNOT BE SAID TO BE VESTED WITH THE ASSE SSEE ? 2.2 THE LEARNED CIT(A) ERRED DIRECTING THE ASSESSIN G OFFICER TO ALLOW DEPRECIATION ON THE WINDMILLS, WHOSE OWNERSHIP IS N OT PROVED WITH EVIDENCE, WITHOUT APPRECIATING THE FACT THAT THE DOCUMENTS PR ODUCED BY THE ASSESSEE ARE ONLY SELF SERVING DOCUMENTS, AS THE PURCHASES A ND PAYMENTS ARE WITHIN THE GROUP, AND THE SAME CANNOT BE RELIED UPON AS CO NCLUSIVE EVIDENCE TOWARDS ACQUISITION OF WINDMILLS? 2.3 THE LEARNED CIT(A) ERRED IN NOT APPRECIATING TH E FACT THAT UNLESS THE LAND ON WHICH THE WINDMILL IS ERECTED IS REGISTERED IN T HE NAME OF THE BUYER, AS THE WINDMILL AND LAND ARE INSEPARABLE , AND FURTHER THE TRANSFER OF WINDMILL IS NOTIFIED BY M/S. TANGEDCO, THE BUYER CANNOT BE SAID TO HAVE OWNED THE WINDMILL ? 3.1 THE LEARNED CIT(A) ERRED IN DELETING THE 50% RE STRICTION OF DEPRECATION ON 94 WINDMILLS, WITHOUT APPRECIATING THE FACT THAT THE OWNERSHIP OF THE WIND MILLS WERE VESTED WITH THE ASSESSEE DURING THE SECO ND HALF OF THE FINANCIAL YEAR 2011-12 ONLY, BY VIRTUE OF THE NAME TRANSFER C ERTIFICATE OF THE COMPETENT AUTHORITY, M/S. TANGEDCO, AND ACCORDINGLY THE ASSESSEE WILL BE ELIGIBLE FOR 5O% OF THE TOTAL DEPRECIATION ? ITA NO326/MDS./2017 :- 3 -: 3. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE O PINION THAT SIMILAR ISSUE CAME FOR CONSIDERATION BEFORE THIS TR IBUNAL IN ASSESSEE'S OWN CASE IN ITA NO.2228/MDS./2016 & C.O. NO.140/MDS ./2016 BY ASSESSEE VIDE ORDER DATED 03.02.2017 FOR ASSESSMENT YEAR 2011-12 WHEREIN HELD THAT:- 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE CLAIMS TO HAVE PURCHASED L ANDS FROM INDUS IND BANK ALONG WITH THE WINDMILLS, AND DULY ACCOUNT ED FOR THE SAME IN ITS BOOKS OF ACCOUNT, ALSO PAYING CONSIDERATION THE REFOR. THE LANDS WERE THOUGH PENDING TRANSFER AT THE RELEVANT TIME, AND T HEIR REGISTRATION IN ITS NAME, COMPLETING THE PROCESS (OF TRANSFER), HA S BEEN COMPLETED ONLY RECENTLY, I.E., DURING THE YEAR 2016. IN OUR V IEW, WHAT WOULD BE RELEVANT IS IF THERE HAS BEEN TRANSFER OF LAND/S IN TERMS OF SECTION 2(47)(V) OF THE ACT. WE, ACCORDINGLY, ONLY CONSIDER IT PROPER THAT THE MATTER BE RESTORED TO THE FILE OF THE ASSESSING OFF ICER FOR EXAMINING THE ASPECT OF THE TRANSFER OF LAND/S ON WHICH THE SUBJE CT WINDMILLS (154) ARE ERECTED IN-AS-MUCH AS THEY FORM PART OF ONE, IN TEGRATED UNIT/S. DEPRECIATION, WE MAKE IT CLEAR, WOULD THOUGH BE EXI GIBLE ON THE COST EXCLUSIVE OF THE COST OF LAND, WHICH THE LD. AR INF ORMS HAS BEEN ACCOUNTED FOR SEPARATELY. WE, ACCORDINGLY, DIRECT S O, SETTING ASIDE THE IMPUGNED ORDER. THE AO SHALL ADJUDICATE IN ACCORDAN CE WITH LAW, ISSUING DEFINITE FINDINGS OF FACT. FURTHER, THE ASS ESSEE, ON WHOM THE ONUS TO PROVE ITS CLAIM/S LIE, SHALL BE PROVIDED A DEQUATE OPPORTUNITY OF HEARING AND SHALL CO-OPERATE IN SUBMITTING THE REQU IRED INFORMATION. ITA NO326/MDS./2017 :- 4 -: 7. THE ASSESSEE HAS FILED CROSS OBJECTION CO. NO. 1 40/MDS/2016 SUPPORTING THE CIT(APPEAL) ORDER. SINCE, WE HAVE S ET ASIDE THE CIT(A) ORDER AND REMITTED THE DISPUTED ISSUE TO THE FILE O F THE ASSESSING OFFICER, THE CROSS OBJECTION BECOMES INFRUCTOUS AND DISMISSED. 3.1. IN VIEW OF THE ORDER OF TRIBUNAL, WE ARE INCL INED TO REMIT THE ISSUE TO THE FILE OF LD. ASSESSING OFFICER ON SIMIL AR DIRECTION 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 02 ND JUNE, 2017, AT CHENNAI. SD/ - SD/ - ! ' # . $ %& ' ( DUVVURU RL REDDY ) ) & / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER () / CHENNAI *+ / DATED: 02 ND JUNE, 2017. K S SUNDARAM +,-- ./-0/ / COPY TO: - 1 . / APPELLANT 3. - 1-!' / CIT(A) 5. /23- 4 / DR 2. / RESPONDENT 4. - 1 / CIT 6. 3&-5 / GF