DCIT 12(2), MUMBAI V. SWANI CORPORATION, MUMBAI

ITA 4157/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100967 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 10-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 23-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Depreciation; Additional depreciation
• Section: 69C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER AND RAM L AL NEGI, JUDICIAL MEMBER / I .T.A. NO. 4157/MUM/2013 ( / ASSESSMENT YEAR :2007 - 08 THE DCIT - 12(2), AAYAKAR BHAVAN, MUMBAI - 400 020 / VS. M/S. SWANI CORPORATION, HARINIWAS, C ROAD, MUMBAI - 400 020 C.O. NO. 164/MUM/2014 (ARISING OUT OF I .T.A. NO. 4157/MUM/2013 ( / ASSESSMENT YEAR :2007 - 08 M/S. SWANI CORPORATION, HARINIWAS, C ROAD, MUMBAI - 400 020 / VS. THE DCIT - 12(2), AAYAKAR BHAVAN, MUMBAI - 400 020 / I .T.A. NO. 415 8 /MUM/2013 ( / ASSESSMENT YEAR :200 8 - 0 9 THE DCIT - 12(2), AAYAKAR BHAVAN, MUMBAI - 400 020 / VS. M/S. SWANI CORPORATION, HARINIWAS, C ROAD, MUMBAI - 400 020 C.O. NO. 165/MUM/2014 (ARISING OUT OF I .T.A. NO. 415 8 /MUM/2013 ( / ASSESSMENT YEAR :200 8 - 0 9 M/S. SWANI CORPORATION, HARINIWAS, C ROAD, MUMBAI - 400 020 / VS. THE DCIT - 12(2), AAYAKAR BHAVAN, MUMBAI - 400 020 / I .T.A. NO. 4 636 /MUM/2013 ( / ASSESSMENT YEAR : 200 9 - 1 0 THE DCIT - 12(2), AAYAKAR BHAVAN, MUMBAI - 400 020 / VS. M/S. SWANI CORPORATION, HARINIWAS, C ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. : AADFS 5355H M/S. SWANI CORPORATION 2 ( / APPELLANT ) .. ( / RESPONDENT ) / A SSESSEE BY: SHRI NITIN WAGHMODE / REVENUE BY: SHRI SHEKHAR GUPTA / DATE OF HEARING : 01 .0 9 .2015 / DATE OF PRONOUNCEMENT : 09 .0 9 .2015 / O R D E R PER N.K. BILLAIYA, AM: ITA NO. 4157/M/13 AND C.O. NO. 164/M/2014 ARE APPEAL AND CROSS OBJECTION BY THE REVENUE AND THE ASSESSEE AGAINST THE VERY SAME ORDER OF THE LD. CIT(A) - 24 MUMBAI DATED 28.2.2013 PERTAINING TO A.Y. 2007 - 08. ITA NO. 4158/M/2013 AND C.O. NO. 165/M/2014 ARE APPEAL AND CROSS OBJECTION BY THE REVENUE AND THE ASSES SEE AGAINST THE VERY SAME ORDER OF THE LD. CIT(A) - 24 MUMBAI DATED 28.2.2013 PERTAINING TO A.Y. 2008 - 09 AND ITA NO. 4636/M/2013 IS THE APPEAL BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) - 23, MUMBAI DATED 1.3.2013 PERTAINING TO A.Y. 2009 - 10. AS COMMON ISSUES ARE INVOLVED IN ALL THESE APPEALS AND CROSS OBJECTIONS, THEY WERE HEARD TOGETHER AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. THE GRIEVANCE OF THE REVENUE IS SAME IN ALL THE ASSESSMENT YEARS UNDER APPEAL THOUGH THE QUANTUM MAY DEFER. THE REVENUE IS AGGRIEVED BY THE DECISION OF THE LD. CIT(A) IN ALLOWING DEPRECIATION ON WIND MILLS WEG. 3. AT THE VERY OUTSET, REPRESENTATIVES OF BOTH THE SIDES AGREED THAT FACTS INVOLVED IN THE ISSUES UNDER CONSIDERATION ARE IDEN TICAL FOR ALL M/S. SWANI CORPORATION 3 THE YEARS THEREFORE WE HEARD THE APPEAL OF ASSESSMENT YEAR 2007 - 08 AND ON THE BASIS OF THE FACTS OF A.Y. 2007 - 08, THESE APPEALS ARE DISPOSED OF AS UNDER. 4. FACTS OF THE CASE ARE THAT THE ASSESSEE IS A TRADER IN SPICES AND OIL SEEDS. THE AS SESSEE IS ALSO IN THE BUSINESS OF GENERATING AND SELLING THE WIND POWER ENERGY. THE ASSESSEE IS A PARTNERSHIP FIRM CONSISTING OF 6 PARTNERS. THE WIND ENERGY GENERATED IS SOLD TO THE ELECTRICITY BOARDS OF TAMILNADU AND KARNATAKA STATES. ONE WIND ENERGY G ENERATOR (WEG) IS INSTALLED IN THE DISTRICT IN KARNATAKA STATE AND ANOTHER WEG IN TAMILNADU STATE. BOTH WEG WERE ERECTED AND COMMISSIONED DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2007 - 08. 4.1. WHILE SCRUTINIZING THE RETURN OF INCOME FOR A.Y. 2007 - 08, THE ASSESSING OFFICER NOTICED THAT THE WEG IN TAMILNADU WAS SUPPLIED, ERECTED AND COMMISSIONED BY M/S. SOUTHERN WIND FARMS LTD (SWFL), A CHENNAI BASED COMPANY. THE COST OF THE WEG AS PER THE COMMERCIAL INVOICE IS RS. 90 LAKHS. THE WEG IN THE STA TE OF KARNATAKA WAS SUPPLIED ERECTED AND COMMISSIONED BY M/S. PIONEER WINDCON LTD, ANOTHER CHENNAI BASED COMPANY. THE COST OF THE WEG IS RS. 113 LAKHS. 4.2. THE AO FURTHER FOUND THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SHOWN AN INCOME OF RS. 8,370/ - FROM THE SALE OF ELECTR ICITY. THE AO FURTHER FOUND THAT THE ASSESSEE HAS CLAIMED DEPRECIATION ON BOTH THE WEGS AS UNDER: OPENING WDV NIL M/S. SWANI CORPORATION 4 ADDITION 2,05,24,480/ - FULL RATE OF DEPRECIATION 80% CLAIMED BY THE ASSESSEE 40% DEPRECIATION CLAIMED 82,09,792/ - CLOSING WDV 1,23,14,688/ - 4.3. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO PRODUCE THE COMPLETE DETAILS REGARDING THE ERECTION AND COMMISSIONING OF BOTH THE WEG. THE ASSESSEE FILED COPIES OF COMMER CIAL INVOICE NO. SWL/WEG/055 DATED 31.02.2007 FOR THE WEG IN TAMIL NADU. IT WAS EXPLAINED THAT THE AMOUNT OF RS. 90 LAKHS PAID TO SOUTHERN WIND FARMS LTD. INCLUDES THE ERECTION AND COMMISSIONING CHARGES. THE ASSESSEE ALSO PRODUCED THE COMMERCIAL INVOICE NO. PWPL/KA/02/06 - 07 DATED 9.3.2007 IN RESPECT OF WEG INSTALLED IN KARNATAKA STATE. THE ASSESSEE ALSO SUPPLIED ANOTHER COMMERCIAL INVOICE NO. ENC/97/06 - 07 DATED 30.3.2007 FOR RS. 2,24,480/ - BEING THE CHARGES FOR ERECTION AND COMMISSIONING OF THE WEG IN KA RNATAKA STATE. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS AND THE RELEVANT DOCUMENTARY EVIDENCES SUPPLIED BY THE ASSESSEE, THE AO FOUND THAT THE COST OF LAND FOR WEG IN TAMIL NADU WAS RS. 58,500/ - AS PER THE PHOTOCOPY OF THE SALE DEED FURNISHED BY TH E ASSESSEE. 4.4. THE AO FURTHER OBSERVED THAT ONE OF THE REPRESENTATIVE OF THE ASSESSEE SHRI ANIL SHARMA IN HIS LETTER DATED 23.12.2009 HAD ADMITTED THAT THE SAID LAND WAS PROCURED BY SOUTHERN WIND FARMS LTD., AND PIONEER WINDCON PVT. LTD., AND THE ASSESSEE HAS PAID RS. 3 LAKHS TOWARDS THE COST OF LAND. THE AO WAS OF THE FIRM BELIEF THAT THE M/S. SWANI CORPORATION 5 ASSESSEE HAS INCURRED UNEXPLAINED EXPENDITURE IN THE PURCHASE OF LAND AT RS. 2,41,500/ - . THE AO ADDED THE SAME TO THE INCOME OF THE ASSESSEE. THE AO THEN PROCEEDED BY EXAMINING THE COST OF WEG AND AFTER ELABORATE DISCUSSION IN HIS ASSESSMENT ORDER, THE AO FINALLY CAME TO THE CONCLUSION THAT THE ASSESSEE HAS FAILED TO GIVE A DETAILED BREAK - UP IN RESPECT OF THE INDIVIDUAL MACHINERIES AND THEREFORE THE ASSESSEE WAS ASKED TO PROVIDE THE PURCHASE BILLS OF MACHINERIES USED IN THE ERECTION OF THE NEW WEG. SINCE THE PURCHASE BILLS WERE NOT PRODUCED BY THE ASSESSEE, THE AO FORM THE BELIEF THAT NO DEPRECIATION IS ALLOWABLE ON WEG. THE AO WAS ALSO OF THE OPINION THAT THERE IS NO REAL AND VERIFIABLE EVIDENCE PRODUCED BY THE ASSESSEE TO SHOW NEW ASSETS HAVE COME INTO EXISTENCE IN THE NAME OF THE ASSESSEE. THE AO DENIED DEPRECIATION IN RESPECT OF WEG AT TAMIL NADU FOR WANT OF DOCUMENTARY EVIDENCES. 4.5. IN SO FAR AS THE CLAIM OF DEPRECIATI ON ON WEG ERECTED IN THE STATE OF KARNATAKA, THE AO DENIED THE CLAIM OF DEPRECIATION BECAUSE THE OWNER OF THE LAND WAS NOT THE ASSESSEE. 5. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AND REITERATED ITS CLAIM OF DEPRECIATION . THE LD. CIT(A) AT PARA 4.3.4 AT PAGE - 16 HAS OBSERVED THAT IT IS ALSO SEEN FROM THE RECORD THAT DURING THE APPELLATE PROCEEDINGS CIT(A) - 23 HAD ASKED THE AO VIDE LETTER DATED 19.11.2010 TO CARRY OUT ENQUIRIES THROUGH THE INVESTIGATION WING OF THE DEPARTMENT ON THE ISSUES OF PURCHASE OF LAND, COST INCURRED FOR TRA NSPORTATION, COST APPORTIONMENT AND THE EXISTENCE OF THE WIND MILL. THE AO SUBMITTED HIS REPORT ENCLOSING THE REPORT WHICH IS EXHIBITED AT THE SAME PARA OF THE ORDER OF THE FIRST APPELLATE AUTHORITY. M/S. SWANI CORPORATION 6 5.1. AFTER RECEIVING THE REMAND REPORT, THE LD. C IT(A) FURTHER ASKED THE AO TO CARRY OUT FURTHER ENQUIRIES. AFTER CONSIDERING THE ENQUIRY REPORT AND THE REMAND REPORT AND THE SUBMISSIONS MADE BY THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE OBSERVATIONS AND THE FINDINGS OF THE LD. CIT (A) READ AS UNDER: IN THIS REGARD, THE REPORT OF THE DDIT IS PERUSED WHEREIN IT IS MENTIONED THAT THERE IS A WIND MILL AND ERECTED BY M/S SWANI CORPORATION AND THE SAME WAS COMMISSIONED DURING THE F.Y. 2006 - 07. FURTHER, DDIT, UNIT - II, COIMBATORE HAS A LSO OBTAINED THE CERTIFICATES FROM THE TAMILNADU ELECTRICITY BOARD WITH REGARD TO APPROVAL OF WEG COMMISSIONING. AS PER THIS LETTER DT. 22/01/2007 IT IS CLEARLY MENTIONED THAT THE NAME OF THE PROMOTER WAS SWANI CORPORATION, LOCATION, CAPACITY AND THE IDENT IFICATION NUMBER IS MENTIONED AS WEG HTSC NO. U135S. THE ASSESSEE'S AR DURING THE HEARING HAS DRAWN MY ATTENTION TO THIS APPROVAL LETTER THAT AT POINT NO.6 UNDER 'CONDITION TO BE FULFILLED BY THE PROMOTER' IT IS MENTIONED AS 6) IT SHOULD BE ENSURED BEFORE COMMISSIONING OF THE WEG THAT THE WEG ERECTED IS A NEW MACHINE AND NOT A SECOND HAND MACHINE BY CERTIFYING THE SUPPORTING DOCUMENTS. SIMILARLY, LETTER DT. 21/02/2007 ISSUED BY EXECUTIVE ENGINEER OPERATION AND MAINTENANCE UDUMALPET TO THE SUPERINTENDENT E NGINEER UDUMALPET WHEREIN IT IS ALSO MENTIONED THAT M/S SWANI CORPORATION, MUMBAI HAVE COMPLETED THE 225 KV LINK LINE WORKS FOR THE ENERGIZE ION OF THE WEG AND FURTHER MENTIONED IN PARAGRAPH NO.3 OF THE ABOVE MENTIONED LETTER AS UNDER: - 'THE NEWLY ERECTED 1X225 KW WEG IS TO BE CONNECTED WITH BOARDS GRID THROUGH THE EXISTING 22KV M/S. SWANI CORPORATION 7 GUDIMANGALAM FEEDER FED OF 110/22KV UDUMALPET SUB - STATION PERMANENTLY. 4.3.8 THE DDIT, UNIT - IL, COIMBATORE HAS ALSO ENCLOSED THE INSTALLATION CERTIFICATE DT. 02/02/2007 WHEREIN TH E HTSC NUMBER, CAPACITY, LOCATION, VILLAGE AND DATE OF SUPPLY 'EFFECTED ARE MENTIONED. THUS, AS PER THE ABOVE EVIDENCE PRODUCED BY THE ASSESSEE AND THE, DDIT, UNIT - II, COIMBATORE THE WEG IS A NEW ONE AND ERECTED BY THE ASSESSEE DURING THE FINANCIAL YEAR 20 06 - 07 RELEVANT TO A.Y. 2007 - 05. 4.3.9 FROM THE ABOVE FINDINGS, IN MY OPINION, THE ASSESSEE HAS SATISFIED ALL THE CONDITIONS FOR CLAIMING DEPRECIATION. IN ORDER TO CLAIM DEPRECIATION THE ASSESSEE HAS TO SATISFY THE CONDITIONS OF OWNERSHIP EXISTENCE OF MA CHINERY PUT TO USE AND PARTICULARLY IN THIS CASE IT SHOULD BE A NEW MACHINE. THE PROVISIONS OF SEC. 32(1) READ AS UNDER : - '32(1) IN RESPECT OF DEPRECIATION OF - (I) BUILDINGS/ MACHINERY; PLANT OR FURNITURE/ 'BEING TANGIBLE: ASSETS; (II) (II) KNOW - BOW. PATENTS/ COPYRIGHT, TRADE MARKS/ LICENCES/ FRANCHISES OR ANY OTHER BUSINESS OR COMMERCIAL RIGHTS OF SIMILAR NATURE/ BEING INTANGIBLE ASSETS ACQUIRED ON OR AFTER THE 1 ST DAY OF APRIL, 1998, OWNED, WHOLLY OR PARTLY BY THE ASSESSEE AND USED FOR THE PURPOSES OF THE BUSINESS OR PROFESSION THE FOLLOWING DEDUCTIONS SHALL BE ALLOWED. 4.3.10 THE ASSESSEE HAS SATISFIED ALL THE CONDITIONS TO CLAIM DEPRECIATION ON THE WINDMILLS. IT IS ALSO SEEN FROM THE FACTS OF THE CASE, THE ASSESSING OFFICER HAS N OWHERE DISPUTED THE PAYMENT MADE BY THE ASSESSEE TO THE SUPPLIER, THE EXISTENCE OF THE WEG AND THE OPERATION OF THE WIND MILL. THE ABOVE FACTS HAVE ALSO BEEN M/S. SWANI CORPORATION 8 ASCERTAINED DURING THE REMAND PROCEEDINGS BY THE DDIT, INVESTIGATION UNIT - II, COIMBATORE. THE RELE VANT PORTION OF THE REPORT HAS ALREADY BEEN REPRODUCED IN THE EARLIER PARAGRAPHS. THE LD. CIT(A) FINALLY BEING CONVINCED WITH THE CLAIM OF DEPRECIATION DIRECTED THE AO TO ALLOW THE SAME. 6. AGGRIEVED BY WHICH THE REVENUE IS BEFORE US. 7. THE LD. DEP ARTMENTAL REPRESENTATIVE STRONGLY RELIED UPON THE FINDINGS OF THE AO. 8. THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN SUBMITTED BEFORE THE LOWER AUTHORITIES. THE LD. COUNSEL ALSO DREW OUR ATTENTION TO THE RELEVANT DOCUMENTARY EVIDENCES PLACED ON RECORD IN THE FORM OF A PAPER BOOK. 9. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND WITH THE ASSISTANCE OF THE LD. COUNSEL, WE HAVE ALSO GONE THROUGH THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD. IN OUR UNDERSTANDI NG OF THE FACTS, THE AO HAS DECLINED THE CLAIM OF DEPRECIATION FOR THE FOLLOWING REASONS: I) THERE IS NO AGREEMENT FOR ERECTION AND COMMISSIONING. II) THERE IS INCONSISTENCY IN RESPECT OF THE COST OF LAND III) NO BREAK - UP OF INDIVIDUAL MACHINERIES HAVE BEEN GIVEN IN RESPECT OF THE WEG. IV) THERE ARE NO IDENTIFICATION NO. OF THE WIND MILL V) THE ASSESSEE HAS NOT PROVED THAT THE WIND MILL HAS BEEN INSTALLED WAS A NEW WIND MILL. M/S. SWANI CORPORATION 9 9.1. AT THE VERY OUTSET, WE HAVE TO STATE THAT WHETHER THE INSTALLED WIND MILL WAS NEW OR OLD WOU LD NOT AFFECT THE CLAIM OF DEPRECIATION AS PER THE PROVISIONS OF THE LAW. FURTHER WE FIND THAT THE REPORT OF THE DDIT, UNIT - II COIMBATORE IS SELF SPEAKING REPORT WHEREIN THE REVENUE AUTHORITIES HAVE MADE A DETAILED INVESTIGATION IN RESPECT OF THE ERECT ION OF WIND MILL ENERGY IN THE STATE OF TAMIL NADU. THE EXCERPTS OF THE SAID REPORT HAS BEEN INCORPORATED BY THE LD. CIT(A) IN HIS ORDER FROM PARA 4.3.7 ONWARDS AND A GIST OF WHICH IS EXHIBITED ELSEWHERE AND THE REPORT OF DDIT (SUPRA). WE HAVE NO HESITA TION TO HOLD THAT THE ASSESSEES CLAIM FOR PURCHASING A WIND MILL, ERECTING THE SAME AND GENERATING ELECTRICITY ARE FULLY SUBSTANTIATED. THEREFORE, THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEPRECIATION AS PER THE PROVISIONS OF THE LAW. WE, ACCORDINGLY DE CLINE TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). 9.2. IN SO FAR AS THE CLAIM OF DEPRECIATION ON THE WIND MILL INSTALLED IN THE STATE OF KARNATAKA IS CONCERNED, THE AO HAS DECLINED THE CLAIM FOR THE FOLLOWING REASONS: I) THE LAND ON WHICH THE WIND M ILL HAS BEEN ERECTED CANNOT BE OWNED BY THE ASSESSEE AS IT BELONGS TO/OR THE LAND GRANTED TO WEAKER SECTIONS BY THE GOVERNMENT OF KARNATAKA. II) SINCE THE ASSESSEE DOES NOT OWNED THE LAND, ASSESSEE CANNOT BE CONSIDERED AS OWNER OF THE WEG. 9.3. A PERUSAL OF THE RECORD SHOWS THAT THE SAID LAND HAS BEEN TAKEN ON LEASE BY M/S. PIONEER WINDCON PVT. LTD., FOR A PERIOD OF 30 YEARS. WE ALSO FIND THAT THE KARNATAKA RENEWABLE ENERGY M/S. SWANI CORPORATION 10 DEVELOPMENT LTD., HAS APPROVED THE POWER PROJECT AND THERE IS AN AGREEM ENT BETWEEN THE DEPARTMENT OF ENERGY OF GOVERNMENT OF KARNATAKA AND THE ASSESSEE FOR THE INSTALLATION AND SUPPLY OF ELECTRICITY TO THE GOVERNMENT. THESE FACTS CONCLUSIVELY ESTABLISHED THE CLAIM OF THE ASSESSEE FOR DEPRECIATION MERELY BECAUSE THE ASSESSEE IS NOT THE OWNER OF THE LAND AND THE LAND IS A LEASEHOLD LAND WOULD NOT ITSELF DIS ENTITLED THE ASSESSEE WITH THE CLAIM OF DEPRECIATION. THE LD. CIT(A) HAS RIGHTLY ALLOWED THE CLAIM OF DEPRECIATION AND THEREFORE WE DECLINE TO INTERFERE. 10. IN THE RESU LT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. C.O. NO. 164/M/2014 11 . IN ITS CROSS OBJECTION, THE FIRST GROUND RELATES TO THE ADDITION OF RS. 2,41,500/ - U/S. 69C OF THE ACT. 12. THE FACTS ARE THAT AS PER THE SALE DEED, THE COST OF THE LAND IS RS. 58,500/ - WHILE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, ONE OF THE REPRESENTATIVE OF THE ASSESSEE ADMITTED THAT THE ASSESSEE HAS PAID RS. 3 LAKHS TOWARDS COST OF LAND. ON THE BASIS OF THIS ADMISSION, THE AO MADE AN ADDITION OF RS. 2,41,500/ - U/S. 69C OF THE ACT AS UNEXPLAINED EXPENDITURE. 13. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 14. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT WHAT THE AUTHORISED REPRESENTATIVE WANTED TO CONVEY WAS THAT THE ASSES SEE HAS WRONGLY CLAIMED THE DEPRECIATION ON THE COST OF LAND AND IN M/S. SWANI CORPORATION 11 ADMITTING SO HE HAS WRONGLY STATED THE COST OF LAND AS RS. 3 LAKHS. OTHERTHAN THIS, THE REVENUE HAS NO EVIDENCE TO SHOW THAT THE LAND WAS PURCHASED FOR RS. 3 LAKHS AND RS. 2,41,500/ - HAS BEEN PAID IN CASH OUTSIDE THE BOOKS OF ACCOUNT. 15. THE LD. DR STRONGLY SUPPORTED THE FINDINGS OF THE REVENUE AUTHORITIES. 16. AFTER GIVING A THOUGHTFUL CONSIDERATION TO THE FACTS UNDER CONSIDERATION, WE FIND THAT EXCEPT FOR THE ADMISSION OF ONE OF THE AUTHORISED REPRESENTATIVE, THERE IS NO DOCUMENTARY EVIDENCE TO SUGGEST THAT THE ASSESSEE HAS INCURRED COST OUTSIDE THE BOOKS OF ACCOUNT. MERELY ON THE BASIS OF AN UNSUBSTANTIATED SUBMISSION CANNOT LEAD TO THE ADDITION U/S. 69C OF THE ACT. THE ASSESSEE HA S PURCHASED THE LAND FOR RS. 58,500/ - AND THEREFORE TO THIS EXTENT, THE ASSESSEE IS NOT ENTITLED FOR THE CLAIM OF DEPRECIATION. WHILE DELETING THE ADDITION OF RS. 2,41,500/ - , WE DIRECT THE AO TO WITHDRAW THE DEPRECIATION ON THE AMOUNT OF RS. 58,500/ - . GR OUND NO. 1 IS PARTLY ALLOWED. 17. GROUND NO. 2 RELATES TO THE CLAIM OF ADDITIONAL DEPRECIATION ON THE WEG. 17.1. IT IS THE CLAIM OF THE ASSESSEE THAT ADDITIONAL DEPRECIATION IS TO BE ALLOWED IN RESPECT OF NEW MACHINERY OR PLANT ACQUIRED AND INSTALL ED AFTER 31.3.2005 WHICH PRESCRIBED FOR 20% OF THE CAPITAL COST OF SUCH PLANT AND MACHINERY. AS THE ADDITIONAL PLANT AND MACHINERY HAS BEEN INSTALLED AFTER 30.9.2006 BUT BEFORE 31.3.2007, THE SAME IS TO BE RESTRICTED TO 10% OF THE TOTAL COST OF THE PLANT AND MACHINERY. M/S. SWANI CORPORATION 12 17.2. THE CLAIM OF ADDITIONAL DEPRECIATION HAS BEEN DENIED BECAUSE THE PROVISIONS OF SEC. 32(1)(IIA) HAS BEEN AMENDED W.E.F. 1L.4.2013 BY THE FINANCE ACT, 2012. 17.3. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STRAIGHTAWAY RELIED UPON THE DECISION OF THE HONBLE HIGH COURT OF MADRAS IN THE CASE OF CIT VS ATLAS EXPORT ENTERPRISE (MAD) 373 ITR 414. IT IS THE SAY OF THE LD. COUNSEL THAT THIS DECISION OF THE HIGH COURT OF MADRAS CLEARLY SHOW THAT THE GENERATION OF ELECTRICITY BY WINDMIL L AMOUNTS TO PRODUCTION OF AN ARTICLE OR THING AND THEREFORE THE PRE - AMENDED PROVISION IS APPLICABLE. 18. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FACTS OF THE CASE QUA THE DECISION OF THE HONBLE HIGH COURT OF MADRAS. WITH OUR UTMOST RESPEC T TO THE HONBLE HIGH COURT OF MADRAS , IF THE VIEW EXPRESSED BY THE HONBLE HIGH COURT IS CORRECT , THEN THERE WAS NO NEED FOR INSERTING SPECIFICALLY OR IN THE BUSINESS OF GENERATION OR GENERATION AND DISTRIBUTION OF POWER W.E.F. 1.4.2013. WE, THEREFO RE DECLINE TO INTERFERE WITH THE FINDINGS OF THE REVENUE AUTHORITIES. GROUND NO. 2 IS ACCORDINGLY DISMISSED. 19. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH SEPTEMBER , 2015 SD/ - SD/ - ( RAM L AL NEGI ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 9 TH SEPTEMBER , 2015 . . ./ RJ , SR. PS M/S. SWANI CORPORATION 13 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI