DCIT 12(2), MUMBAI V. KEWALRAJ & CO, MUMBAI

ITA 4775/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2840 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 20-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINITA J MENON
• Keywords: Depreciation; Additional depreciation; Wrong claim; Onus to prove
• Section: 69C; 143(3)

Judgement Text

, ' INCOME TAX APPELLATE TRIBUNAL,MUMBAI- A,BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT ME MBER & SANJAY GARG,JUDICIAL MEMBER /.ITA NO.4775/MUM/2013, /ASSESSMENT YEAR-2007-08 DCIT-12(2) ROOM NO.134, AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 020. VS M/S. KEWALRAJ & COMPANY. E-3, CUFFE CASTLE,CUFFE PARADE, COLABA,MUMBAI-400 005. PAN:AAEFA 7871 M /.ITA NO.4166/MUM/2013, /ASSESSMENT YEAR-2007-08 M/S. KEWALRAJ & COMPANY. MUMBAI-400 005. PAN:AAIFK 7371 A VS DCIT-12(2) MUMBAI-400 020. /.ITA NO.4776/MUM/2013, /ASSESSMENT YEAR-2008-09 DCIT-12(2) MUMBAI-400 020. VS M/S. KEWALRAJ & COMPANY. MUMBAI-400 005. /ASSESSEE BY : SHRI SHEKHAR GUPTA / REVENUE BY : MS. VINITA J. MENON / DATE OF HEARING : 09 - 09 -2015 / DATE OF PRONOUNCEMENT : 28 -10-2015 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDERS DT.5.3.2013 OF CIT(A)-24, MU MBAI, THE ASSESSING OFFICER(AO), AND THE ASSESSEE HAVE FILED CROSS APPEALS FOR THE AY 2007-0 8,WHEREAS FOR A.Y. 2008-09 THE AO HAS FILED THE APPEAL.GROUND OF APPEAL FOR THE A.Y.2007-08 BY THE REVENUE AND THE ASSESSEE AND FOR A.Y. 2008-09 ARE AS FOLLOWS: ITA NO. 4775MUM/13 (A.Y.07-08) (REVENUES APPEAL) : 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DISALLOWING DEPRECIATION ON WEG OF RS.46,18,000/-. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE A.O.'S CONCLUSION THAT THE WEG DID NOT HAVE IDENTIFICATION NUMBER IS NOT CORRECT AND THIS CANNOT BE GROUND FOR DENIAL OF DEPRECIATI ON ON WEG WITHOUT APPRECIATING THAT NUMBER SF NO.463/B2 HTSC NO.1375 IS NOT UNIQUE IDENTIFICA TION NUMBER BUT THE SURVEY NUMBER (SF NO.463/82) ALONGWITH THE NUMBER ASSIGNED BY THE ELE CTRICITY BOARD IN RESPECT OF HIGH TENSION SUPPLY (HTSC NO. 1375) SUBSEQUENTLY. THE CIT(A) HAS THUS ERRED IN NOT APPRECIATING THE POINT OF THE A.O.THAT THE WEG LACKS ANY UNIQUE IDENTIFICATI ON NUMBER MARKED ON ITS AT THE TIME OF MANUFACTURING SO AS TO ASCERTAIN THAT THE SAME MAC HINE IS NOT BEING RECYCLED/REUSED FOR CLAIMING BENEFIT OF DEPRECIATION MULTIPLE TIMES. 3.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE COST OF LAND IS NOT A DETERMINING FACTOR AS TO THE ALLOWABILITY OF THE CLAIM OF DEPRECIATION, WITHOUT APPRECIATING THAT AS MENTIONE D BY THE ASSESSEE IT WAS A TURNKEY PROJECT AND HENCE, THE COST OF LAND AS WELL AS OWNERSHIP OF LA ND IS A VERY SIGNIFICANT AND MATERIAL FACTOR IN NOT ONLY CONSIDERING THE ALLOWABILITY BUT ALSO THE EXT ENT OF DEPRECIATION. 4. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A ) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4775+2KEWALRAJ 2 5. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER AN Y GROUND OR ADD A NEW GROUND.' ITA NO. 4166/MUM/13 (A.Y.07-08) (ASSESSEES APPEA L) : 1. (A) THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 2,70,0001- BY EVOKING THE PROVISION OF SECTION 69C OF THE INCOME TAX ACT AS UNEXPLAINED IN THE ASSESS ME WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE BOUGHT THE TURN KEY PROJECT OF RS. 95,00,000/- WHICH INCLUDES COST OF L AND RS. 30,000/- ALSO. (B) THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN ALLOWING DEPRECIATION ON WIND MILL ON RS. 95,00,000/- INSTEA D OF RS. 94,70,000/- 2. THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND THE ABOVE GROUND OF APPEAL. ITA NO. 4776/MUM/13 (A.Y.08-09) (REVENUE APPEAL) : 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING DEPRECIATION ON WEG OF RS. 44,24, 000/-. 2.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE A. O. 'S CONCLUSION THAT THE WEG D ID NOT HAVE IDENTIFICATION NUMBER IS NOT CORRECT AND THIS CANNOT BE GROUND FOR DENIAL OF DEPRECIAT ION ON WEG WITHOUT APPRECIATING THAT NUMBER SF NO.463/B2 HTSC NO.1375 IS NOT UNIQUE IDENTIFIC ATION NUMBER BUT THE SURVEY NUMBER (SF NO. 463/82) ALONGWITH THE NUMBER ASSIGNED BY THE ELECTR ICITY BOARD IN RESPECT OF HIGH TENSION SUPPLY (HTSC NO. 1375) SUBSEQUENTLY. THE CIT(A) HAS THUS ERRED IN NOT APPRECIATING THE POINT OF THE A. O. THAT THE WEG LACKS ANY UNIQUE IDENTIFIC ATION NUMBER MARKED ON ITS AT THE TIME OF MANUFACTURING SO AS TO ASCERTAIN THAT THE SAME MA CHINE IS NOT BEING RECYCLED/REUSED FOR CLAIMING BENEFIT OF DEPRECIATION MULTIPLE TIMES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE COST OF LAND IS NOT A DETERMINING FACTOR AS TO THE ALLOWABILITY OF THE CLAIM OF DEPRECIATION, WITHOUT APPRECIATING THAT AS MENTIONE D BY THE ASSESSEE IT WAS A TURNKEY PROFIT AND HENCE, THE COST OF LAND AS WELL AS OWNERSHIP OF L AND IS A VERY SIGNIFICANT AND MATERIAL FACTOR IN NO T ONLY CONSIDERING THE ALLOWABILITY BUT ALSO THE EXTE NT OF DEPRECIATION. 4. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND.' ITA NO. 4775MUM/13 (A.Y.07-08) (REVENUES APPEAL) : ASSESSEE- FIRM,ENGAGED IN THE BUSINESS OF MANUFACTU RING OF TOOTHBRUSHES, SHAVING BRUSHES AND WIND ELECTRICITY GENERATOR,FILED ITS RETURN OF INCO ME ON 24.10.2007 ADMITTING TAXABLE INCOME OF RS.40.33 LACS.THE AO COMPLETED THE ASSESSMENT ON 30 .3.09 U/S. 143(3) OF THE ACT DETERMINING INCOME OF THE ASSESSEE AT RS.93,32,620/-. 2. FIRST GROUND OF APPEAL IS ABOUT DEPRECIATION ON WIN D ENERGY GENERATOR(WEG),AMOUNTING TO RS.46,18,000/-. DURING THE ASSESSMENT PROCEEDING TH E AO FOUND THAT THE ASSESSEE HAD ERECTED AND COMMISSIONED WEG,THAT THE WEG WAS SUPPLIED, ER ECTED AND MAINTAINED BY SOUTHERN WIND FIRMS LTD.(SWFL),THAT THE ASSESSEE HAD ORIGINALLY E NTERED INTO AN AGREEMENT WITH AN NEPC INDIA LTD.(NEPCIL)FOR SUPPLY,ERECTION AND COMMISSIO NING OF THE WEG FOR THE TOTAL COMMERCIAL PRICE OF RS.90.00 LACS, THAT LATER ON THE WEG DIVIS ION OF NEPCIL WAS TRANSFERRED TO SWFL, THAT THE ASSESSEES CONTRACT WAS ACTUALLY EXECUTED BY SW FL,THAT WEG WAS ERECTED AND COMMISSION - ED IN A PLACE OF ERODE DISTRICT OF TAMILNADU,THAT T HE ASSESSEE HAD CLAIMED TO HAVE PAID A FURTHER AMT OF RS.5.00 LACS OVER AND ABOVE 90.00 LACS TO SW FL, THAT THE ASSESSEE HAD FULLY CAPITALISED RS.90.00LACS PAID TO NEPCIL AND SWFL(RS.90.00 LACS +RS.5.00 LACS), THAT IT HAD CLAIMED DEPRECIATION OF RS.47.50 LACS INCLUDING ADDITIONAL DEPRECIATION SINCE THE ASSET WAS INSTALLED IN THE 2 ND HALF OF THE YEAR UNDER APPEAL.THE AO ASKED THE ASS ESSEE TO FILE DETAILS REGARDING COST OF LAND AND OTHER MATERIAL WHICH HAD BEEN PROCURED BY IT IN THE PROCESS OF INSTALLATION AND 4775+2KEWALRAJ 3 COMMISSIONING OF THE WIND MILL. HE FOUND THAT THE A SSESSEE HAD DEVIATED FROM THE SUBMISSIONS WITH REGARD TO THE COST OF LAND. HE OBSERVED THAT T HE ASSESSEE HAD INITIALLY SHOWN RS.30,000/- , BUT SUBSEQUENTLY IT CLAIMED THAT THE PLOT OF LAND W AS PURCHASED FOR RS.3.00 LACS.HE CONCLUDED THAT THE ASSESSEE DID NOT FURNISH PROPER DOCUMENTS NOR DID IT PRODUCED ANY EVIDENCE TO SHOW THAT THE COST OF LAND WAS RS.30,000/- ONLY .AS A RESULT HE MADE AN ADDITION OF RS.2.70 LACS AS INCOME OF THE ASSESSEE U/S. 69C OF THE ACT. 3. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM IT WAS CONTENDED THAT THE AO HAD BEEN PROVIDED WITH ALL THE DOCUMENTS RELATING TO THE PURCHASE,INSTALLATION AND COMMISSIONING,THAT THE DISALLOWANCE WAS MADE BASED ON CONJECTURES, SURMISES, PRESUMPTIONS A ND HEARSAYS,THAT COMMISSION CERTIFICATE OF THE WIND MILL HAD BEEN GIVEN BY TAMILNADU ELECTRIC ITY BOARD AND THE SAME COULD NOT BE HELD TO BE NON-GENUINE,THAT THE PAYMENTS HAVE BEEN RECEIVED FROM THE GOVERNMENT FOR SALE OF ELECTRICITY.THE ASSESSEE ALSO SUBMITTED COPIES OF I NVOICES AND CHEQUES ISSUED BY STATE ELECTRICITY DEPARTMENT FOR SALE OF POWER,BEFORE THE FAA. AFTER CONSIDERING THE ASSESSMENT ORDER AND THE SUBM ISSIONS OF THE ASSESSEE,HE HELD THAT THE ASSESSEE DURING THE YEAR MADE ADDITION TO THE FIXED ASSETS AT RS. 95 LAKHS ON ACCOUNT OF WEG AND HAD CLAIMED DEPRECIATION OF RS.47.50 LAKHS,THAT THE AO ASKED THE ASSESSEE TO FURNISH THE DETAILS REGARDING THE ADDITION MADE TO THE FIXED A SSETS REFLECTED IN THE BALANCE SHEET,THAT THE AO FOUND THAT THE ASSESSEE,WITH REGARD TO COST OF LAND , HAD GIVEN DIFFERENT VERSIONS DURING THE COURSE OF ASSESSMENT PROCEEDINGS,THAT INITAILLY IT HAD SHO WN PRICE OF THE PLOT OF LAND AT RS.30, 000/-,THAT SUBSEQUENTLY IT CLAIMED THAT THE PLOT COSED RS.3 LA KHS,THAT AS PER THE AO THE ASSESSEE HAD PROVED ONLY TWO POINTS I.E. THE PAYMENT OF RS. 95 LAKHS TO THE SUPPLIER AND OWNERSHIP OF THE WIND MILL,THAT THE ASSESSEE COULD NOT PROVE THAT THE NE W ASSET BROUGHT INTO EXISTENCE AND SAID TO HAVE BEEN INSTALLED IN TAMILNADU WAS THE SAME WEG ON WHI CH THE ASSESSEE CLAIMED DEPRECIATION,THAT THE INVOICES AND PURCHASE BILLS PROVIDED BY THE AS SESSEE COULD NOT BE RELIED ON SINCE THE FIGURES WERE MENTIONED IN ROUND SUM MANNER,THAT THE ASSESS EE COULD NOT GIVE ANY IDENTIFICATION NUMBER FOR THE WIND MILL.THE FAA FOUND THAT THE AO WAS DIR ECTED TO CARRY OUT CERTAIN ENQUIRIES THROUGH THE INVESTIGATION WING OF THE DEPARTMENT ON THE ISS UES OF PURCHASE OF LAND,COST INCURRED FOR TRANSPORTATION,COST APPORTIONMENT AND THE EXISTENCE OF THE WIND MILL.HE REFERRED TO THE REPORT OF THE AO AS WELL AS THE REPORT OF THE DDIT(UNIT-II),C OIMBATORE DT. 01/03/2011.SUBSEQUENT TO THE RECEIPT OF THE REMAND REPORT THE FAA,VIDE LETTER DT . 16/06/2011 FURTHER ASKED THE AO TO CARRY OUT ENQUIRIES.AS THE FINDINGS/RESULTS OF SOME MORE ENQUIRIES WERE PENDING TO BE REPORTED BY THE AO,HIS OFFICE ISSUED REMINDERS TO THE AO TO COMPLET E THE ENQUIRIES AND SUBMIT THE REPORT ON 18/ 11/2011,5/3/2012,8/5/2012,16/6/2012,18/9/2012AND 7/ 12/2012.AS PER THE FAA,COMPLETE INQUIRY REPORT WAS NOT SUBMITTED BY THE AO.IN THE MEANTIME, DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE MADE SEVERAL WRITTEN AND ORAL SUBMISSIONS REINFORCING THE GENUINENESS OF THE CLAIM MADE BY IT WITH RESPECT TO THE DEPRECIATION ON THE WEG.CONSIDERING THE MATERIAL AVAILABLE ON RECORD THE FAA HELD THAT THE AO HAD RAISED THE CER TAIN ISSUES,NAMELY COST OF THE LAND,COST OF TRANSPORT CHARGES,APPORTIONMENT OF COST(BREAKUP),ID ENTIFICATION OF ASSET,WITH RESPECT TO WEG, THAT THE AO HAD COME TO A REASONABLE CONCLUSION THA T THE ASSESSEE NEITHER FURNISHED PROPER DOCUMENTS NOR HAD PRODUCED ANY EVIDENCE TO SHOW TH AT THE COST OF THE LAND WAS ONLY RS. 30, 000/- FOR THE WEG,THE ASSESSEE EXCEPT-GIVING DIFFE RENT VERSIONS FOR THE COST INCURRED FOR LAND- DID NOT SUBSTANTIATE ITS CLAIM THAT THE COST OF THE LAND WAS INCLUDED IN THE TOTAL PROJECT COST, THAT ONLY INFORMATION AVAILABLE,APART FROM THE AGREEMENT VALUE OF RS.30,000/-WAS THE SUBMISSION 4775+2KEWALRAJ 4 MADE BY THE ASSESSEE'S AR ACCEPTING FOR DISALLOWANC E OF RS. 1,32,000/- AS WRONG CLAIM OF DEPRECIATION ON THE LAND,THAT THE ASSESSEE'S AR VOL UNTARILY AGREED THAT THE LAND COST WAS RS.3,00, 000/-. WITH REGARD TO THE IDENTITY OF WEG,THE FAA HELD THA T THE WEG WAS NOT DEVOID OF ANY IDENTIFICATION NUMBER.IT HAD THE NUMBER SF NO. 463 /82, 506/ 81,S06/A1A, HTSC NO. 1375,THAT FROM THE CORRESPONDENCE WITH THE ELECTRICITY DEPART MENT IT WAS CLEAR THAT IN EVERY CORRESPONDEN- CE THE ABOVE NUMBER WAS REFERRED BY WHICH THE WEG W AS IDENTIFIED,THAT THE AO 'S CONCLUSION THAT THE WEG DID NOT HAVE IDENTIFICATION NUMBER WA S NOT CORRECT HENCE, THIS CONCLUSION OF THE AO CANNOT BE THE GROUND/ONE OF THE GROUNDS FOR DEN IAL OF DEPRECIATION ON THE WEG.WITH REFERENCE TO THE CONTROVERSY OF OLD OR NEW MACHINER Y,THE FAA HELD THAT FROM THE REPORT OF THE DDIT COIMBATORE IT WAS CLEAR THAT THE ASSESSEE HAD ERECTED A WEG DURING THE AY.2007-08,THAT THE HE HAD ALSO OBTAINED A CERTIFICATES FROM THE TA MILNADU ELECTRICITY BOARD WITH REGARD TO APPROVAL OF WEG COMMISSIONING.THE FAA MADE A REFERE NCE TO THE LETTER OF THE ELECTRICITY AUTHORITIES DATED 08.03.2007 AND HELD THAT THE WEG IS NEW.HE FURTHER HELD THAT THE ASSESSEE HAD SATISFIED ALL THE CONDITIONS FOR CLAIMING DEPRECIAT ION I.E. OWNERSHIP AND THE EXISTENCE OF NEW ASSET AND USING THE ASSET DURING THE YEAR,THAT THE AO HAD NO WHERE DISPUTED THE PAYMENT MADE BY THE ASSESSEE TO THE SUPPLIER, THE EXISTENCE OF T HE WEG AND THE OPERATION OF THE WIND MILL. THE ABOVE FACTS HAVE ALSO BEEN ASCERTAINED DURING THE R EMAND PROCEEDINGS BY THE DDIT, COIMBATORE, THAT THE ASSESSEE'S CLAIM FOR PURCHASING A WIND MIL L, ERECTING THE SAME AND GENERATING ELECTRICITY WERE FULLY SUBSTANTIATED,THAT IT WAS ENTITLED TO CL AIM THE DEPRECIATION AT THE RATES APPLICABLE TO THE WIND MILL.HE DIRECTED THE AO TO ALLOW DEPRECIAT ION AS PER THE PROVISIONS OF THE ACT ON RS. 95 LACS,THAT DEPRECIATION DISALLOWED ON LAND HAD TO BE EXCLUDED FROM WEG AS THE SAME HAD BEEN TREATED OVER AND ABOVE THE COST OF WEG. 4.BEFORE US.THE DEPARTMENTAL REPRESENTATIVE(OR)SUPP ORTED THE ORDER OF THE AO.THE AUTHORISED REPRESNTATIVE(AR)ARGUED THAT THE ASSESSEE HAD ENTER ED INTO TURNKEY PROJECT PROJECT,THAT NIPCIL HAD TO SUPPLY THE MATERIAL,THAT THE WEG WAS COMMISS IONED IN THE YEAR,THAT THE VERIFICATION MADE BY THE INVESTIGATION WING OF THE DEPARTMENT PROVED THAT THE ASSESSEE HAD INSTALLED NEW MACHINERY,THAT THE DOCUMENTARY EVIDENCES CLEARLY SH OWED THAT THE WEG WAS FUNCTIONING,THAT THE F AA HAD RIGHTLY ALLOWED THE DEPRECIATION. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD.WE FIND THAT THE FAA HAD DIRECTED THE AO TO MAKE FURTHER INQUIRY THROUGH INVESTIGATING WING OF THE DEPARTMENT,THAT IN SPITE OF MANY A REMINDERS BY THE FAA THE AO DID NOT SUBMIT A COMPLETE REPORT,THAT THE DDIT HAD MADE INQUIRIES WITH THE ELECTRICITY BOARD AUTHO RITIES,THAT THE FAA HAD GIVEN A CATEGORICAL FINDING OF FACT THAT THE WEG WAS NEW AND WAS INSTAL LED DURING THE YEAR UNDER APPEAL.AS THE EXISTENCE AND FUNCTIONING OF THE WEG IS NOT DOUBT,S O,WE ARE OF THE OPINION THAT THE ORDER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL OR FACTUAL INFIR MITY.CONSIDERING THE ABOVE FACTS WE HOLD THAT HE HAD RIGHTLY ALLOWED DEPRECIATION ON THE WEG.CONF IRMING HIS ORDER WE DECIDE THE EFFECTIVE GROUND OF APPEAL AGAINST THE AO. ITA/4166/MUM/2013-AY.2007-08: 6. FIRST GROUND OF APPEAL FILED BY THE ASSESSEE,DEALS WITH ADDITION MADE BY THE AO U/S.69 C OF THE ACT.WE HAVE NARRATED THE FACTS ABOUT THE ISSUE IN E ARLIER PARAGRAPHS. 4775+2KEWALRAJ 5 7.BEFORE US,THE AR STATED THAT BEING A TURNKEY PROJ ECT THE ASSESSEE HAD TO PAY LUMP SUM AMOUNT TO SWFL / NEPCIL,THE SUPPLIER HAD TO MAKE NECESSARY ARRANGEMENT FOR THE PROJECT,THAT THE ACCOUNTANT,NOT AWARE OF THE FACTS,HAD STATED THAT T HE COST OF THE PLOT OF THE LAND WAS RS.3 LAKHS, THAT LAND DOCUMENTARY EVIDENCE IN FORM OF THE PURCH ASE AGREEMENT PROVED THAT THE LAND WAS PURCHASED FOR RS.30,0001-ONLY,LAND WAS TO BE PURCHA SED BY NEPCIL,THAT LATER ON THE ASSESSEE PURCHASED IT,THAT THERE WAS NO EVIDENCE TO SHOW THA T THE ASSESSEE HAD EXTRA MONEY WAS PAID TO THE LAND OWNER,THAT NO INQUIRY WAS MADE BY THE AO I N THAT REGARD.HE REFERRED TO THE JUDGMENT OF VIDEOCON INTERNATIONAL LTD.(54TAXMANN.COM385)OF THE HON'BLE BOMBAY HIGH COURT. 8. WE FIND THAT THE ASSESSEE HAD ENTERED IN TO AN AGRE EMENT WITH NEPCIL FOR SUPPLY ERECTION AND COMMISSION OF A WEG,THAT LATER ON THE JOB OF ERECTI ON AND COMMISSIONING WAS DONE BY SOUTHERN WIND FARMS LTD.,THAT THE ASSESSEE INITIALLY THROUGH A LETTER,THAT WAS NOT SIGNED BY ANY AUTHORISED PERSON,MENTIONED THAT THE COST OF THE PLOT OF LAND WAS RS.3 LAKHS,THAT SUBSEQUENTLY IT FURNISHED A COPY OF THE SALE DEED,THAT AS PER THE DEED THE LAND WAS PURCHASED FOR RS.30,000/-,THAT THE AO MADE AN ADDITION OF RS.2.70 LAKHS TO THE INCOME OF THE ASSESSEE U/S.69C OF THE ACT,THAT THE FAA UPHELD THE ORDER OF THE AO.WE FIND THAT IN THE SALE DEED IT IS CLEARLY MENTIONED THAT THE PLOT OF LAND WAS PURCHASED FOR RS.30,000/-. AGAINST THE SAI D DEED IS THE STATEMENT FILED BEFORE THE AO THAT WAS NOT SIGNED BY ANY AUTHORIZED PERSON.IN OUR OPINION,IF THE AO HAD DOUBT ABOUT THE COST OF THE LAND BECAUSE OF THE DIFFERENT VERSIONS OF CO ST OF PLOT,HE SHOULD HAVE CONDUCTED FURTHER INQUIRY. IN OUR OPINION,TO MAKE AN ADDITION WITHOUT FINDING COMPARATIVE DATA ABOUT THE COST OF THE LAND OF THAT VILLAGE WAS NOT A JUSTIFIABLE ACT. THE ASSESSEE HAD PRODUCED AN ACCEPTABLE DOCUMENTARY EVIDENCE IN FORM OF THE SALE DEED BEFOR E THE AO.THUS,THE BURDEN OF PROOF HAS SHIFTED TO THE AO.BUT,IN OUR OPINION,HE DID NOT DIS CHARGE IT.RELYING UPON A STATEMENT OF AN UNAU -THORISED PERSON TO FASTEN TAX LIABILITY TO THE ASS ESSEE CANNOT BE ENDORSED.THEREFORE,REVERSING THE ORDER OF THE FAA,WE DECIDE THE FIRST GROUND OF APP EAL IN FAVOUR OF THE ASSESSEE. 9. AS FAR AS GROUND B) IS CONCERNED THE ASSESSEE IS TO VERIFY THE FACTS AND PASS APPROPRIATE ORDER AFTER HEARING THE ASSESSEE.GROUND NO.2 STAND ALLOWE D IN FAVOUR OF THE ASSESSEE,IN PART. ITA NO. 4776/MUM/13 (A.Y.08-09) (REVENUE APPEAL) : 10. FOLLOWING OUR ORDER FOR THE EARLIER AY.,WE DECIDE T HE GROUND REGARDING DEPRECIATION AGAINST THE AO. AS A RESULT,APPEALS FILED BY THE AO STAND DISMISSED AND THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER,2015. 28 TH ,2015 SD/- SD/- ( / SANJAY GARG) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /MUMBAI, /DATE: 28.10.2015 . . . JV.SR.PS. 4775+2KEWALRAJ 6 / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI. 4775+2KEWALRAJ 7 DATE INITIALS 1. DRAFT DICTATED ON PC 2. DRAFT PLACED BEFORE AUTHOR 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO THE SR.PS 6. KEPT FOR PRONOUNCEMENT 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE A.R. FOR SIGNATUR E OF THE ORDER 9. DATE OF DISPATCH OF THE ORDER