THE DCIT, (CENTRAL), Indore V. M/S. D.P. POWER, Indore

ITA 814/IND/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5700 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 11-02-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 29-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV VARSHNEY
• Assessee Lawyers: P D NAGAR
• Keywords: Capital asset; Depreciation; Search and seizure; Validity of assessment; Documents seized
• Section: 143(3); 153A; 32; 132

Judgement Text

DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER IT(SS)A NOS. 287 TO 292/IND/2014 & ITA NO.814/IND/2 014 A.YS. 2006-07 TO 2012-13 DY. COMMISSIONER OF INCOME TAX (CENTRAL) INDORE ::: APPELLANT VS M/S D.P. POWER INDORE ::: RESPONDENT CO NOS. 4 TO 9 & 17/IND/2015 ARISING OUT OF IT(SS) NOS.287 TO 292/IND/2014 & ITA NO.814/IND/2014 M/S D.P. POWER INDORE ::: APPELLANT VS DY. COMMISSIONER OF INCOME TAX (CENTRAL) INDORE ::: RESPONDENT REVENUE BY SHRI RAJEEV VARSHNEY RESPONDENT BY SHRI P.D. NAGAR DATE OF HEARING 11.2. 201 6 DATE OF PRONOUNCEMENT 2 9 . 2 .201 6 DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 2 O R D E R PER SHRI B.C. MEENA, AM THESE APPEALS BY THE REVENUE AND CROSS OBJECTIONS BY THE ASSESSEE EMANATE FROM THE ORDERS OF THE LEARNED CI T(A) ALL DATED 30.9.2014. 2. IN IT(SS)A NOS. 287 TO 292/IND/2014 AND IT(SS) A. NO. 814/IND/2014 THE REVENUE HAS RAISED THE FOLLOWING COMMON GROUNDS OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF DEPRECIATION DISALLOWANCE @ 80% ON WIND MILL OF RS. 43,68,480/- (A.Y.2006-07), RS.1,58,73,6 96/- (A.Y. 2007-08), RS.1,81,74,739/- (A.Y. 2008-09), RS.36,34,948/- (A.Y. 2009-10), RS.7,26,990/- (A.Y. 2010-11), RS.1,45,398/- (A.Y. 2011-12), RS.5,81,592 /- (A.Y. 2012-13). DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 3 IN IT(SS) A NOS. 291, 292 AND 814/IND/2014 THE REVEN UE HAS ALSO TAKEN THE FOLLOWING COMMON GROUNDS IN ADDITION TO THE ABOVE GROUND :- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF DISALLOWANCE OF DEDUCTION UNDER SECTION 80IA OF RS. 13,83,572/- (A.Y. 2010-11), RS.26,96,140/- ( A.Y. 2011-12), AND RS.38,37,001/- (A.Y. 2012-13) 3. WE HAVE HEARD BOTH THE SIDES. BRIEF FACTS OF THE CAS E RELATING TO DEPRECIATION WHICH ARE COMMON IN ALL THESE APPEALS ARE THAT SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CARRIED OUT AT THE BUSINESS AS WELL AS RESIDENTIAL PREMISES OF KATARIA GROUP OF RATLAM INCLUDING THE ASSESSEE ALONG WITH OTHER CONCERNS/BUSINESS ASSOCIATES ON 7.9.2011. THE ASSESSEE IS A FIRM OF KATARIA DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 4 GROUP OF RATLAM. THE DATE OF FORMATION OF THE FIRM IS 1.4.2003 AND ITS MAIN OBJECT IS GENERATION AND SUPPLY O F POWER AND ENERGY. SINCE THE WARRANT OF AUTHORIZATION U/S 132 OF THE ACT WAS ISSUED IN THE NAME OF THE ASSESSEE ALSO, NOTICES U/S 153A WERE ISSUED TO THE ASSESSEE FOR A. YS. 2006-07 TO 2011-12 WHICH WERE DULY SERVED. IN COMPL IANCE WITH THE NOTICE U/S 153A OF THE ACT, THE ASSESSEE HAS FILED RETURNS OF INCOME. NOTICES U/S 143(2) OF THE ACT WE RE ALSO ISSUED ALONG WITH QUESTIONNAIRE WHICH WERE SERVED UPON THE ASSESSEE. IN RESPONSE TO ABOVE NOTICES, THE ASSESS EE APPEARED BEFORE THE AO FROM TIME TO TIME AND FILED THE REQUISITE DOCUMENTS. THE LEARNED AO FOUND THAT THE ASSESSEE HAS CLAIMED DEPRECIATION ON WIND MILLS IN THE ASSESSMENT YEARS 2006-07 TO 2012-13 THE DETAILS OF WHI CH ARE AS UNDER :- DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 5 AFTER CONSIDERING THE SUBMISSIONS AND DOCUMENTS FILE D BY THE ASSESSEE, THE AO WAS OF THE VIEW THAT THE FIRST AND NECESSARY CONDITION FOR CLAIMING DEPRECIATION U/S 32 O F THE ACT IS THAT THE ASSESSEE SHOULD BE OWNER OF THE ASSET WHICH IS NOT IN THE CASE UNDER CONSIDERATION. THE REAL OWNER AND USER OF THIS TURBINE IS M/S ENERCON INDIA LTD. BUT N OT THE ASSESSEE. HE ALSO OBSERVED THAT THE ASSESSEE HAS WORKED SIMPLY AS AN INVESTOR FOR WIND TURBINE WHICH IS ONE OF THE PART OF THE TOTAL WINDMILL GENERATION ENERGY PROJECT A.Y. DEPRECIATION CLAIMED ON WIND MILS 2006-07 43,68,480 2007-08 1,58,73,696 2008-09 1,81,74,739 2009-10 36,34,948 2010-11 7,26,990 2011-12 1,45,398 2012-13 5,81,592 TOTAL 4,35,05,842 DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 6 DEVELOPED/ERECTED BY M/S ENERCON INDIA LIMITED. IN T HIS VIEW OF THE MATTER, THE AO DISALLOWED THE CLAIM OF DEPRECIATION MADE BY THE ASSESSEE. 4. ON APPEAL, THE LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE MATERIAL ON RECORD, ALLOWED THE CLAIM OF DEPRECIATION. THE RELEVANT PORTIO N OF THE ORDER OF THE CIT(A) READS AS UNDER :- 3.1 I HAVE GONE THROUGH THE RELEVANT PARAS OF ASSESSMENT ORDER WHEREIN THE A.O. HAS GIVEN REASONS FOR DISALLOWING THE DEPRECIATION CLAIMED @80% ON WI ND MILL PLANT. I HAVE ALSO GONE THROUGH THE WRITTEN SUBMISSIONS OF THE APPELLANT WHICH ARE REPRODUCED ABOVE. THE VARIOUS DOCUMENTS FILED IN SUPPORT OF CL AIM FILED IN THE FORM OF PAPER BOOK HAVING 430 PAGES HA VE ALSO BEEN GONE THROUGH. DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 7 3.2 THE ORDER PLACED BY THE APPELLANT TO PURCHASE T HE WIND MILL RELVEALS THAT IT IS A TURNKEY CONTRACT FO R TRANSPORTATION, INSTALLATION, ERECTION, COMMISSIONI NG AND MAINTENANCE OF THE PLANT. THE PURCHASE AND OWNERSHI P OF PLANT HAVE BEEN EVIDENCED THROUGH VARIOUS DOCUMENTS VIZ. I.E PURCHASSER ORDER FOR THE WIND MI LL, II NATURE OF CONTACT WHICH IS FOUND TO BE ASED ON TURN KEY, III. SALE INVOICES RAISED BY M/S ENERCON INDIA LTD. , IV. TRIPARTITE AGREEMENT AMONGST APPELLANT, M/S RAJASTH AN RENEWAL ENERGY CORPORATION LTD. AND M/S ENERCON INDIA ISSUED BY M/S AJMER VIDYUT VITARAN NIGAM LTD. VI. COPY OF SUBLEASE OF LAND, ON WHICH WIND MILL WAS INSTALLED, EXECUTED IN FAVOUR OF APPELLANT, VII. IN SURANCE POLICY ON THE PLANT IN FAVOUR OF APPELLANT, VIII. C ERTIFICATE OF GENERATION OF POWER ISSUED BY RESPECTIVE ELECTRI CITY BOARDS, IX. COPIES OF DEBIT NOTES RAISED TOWARDS SA LE OF ENERGY, X. COPIES OF BANK STATEMENTS IN WHICH THE S ALE DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 8 PROCEEDS OF ELECTRICITY RECEIVED FROM ELECTRICITY B OARDS, HAVE BEEN CREDITED, XI. PHOTOGRAPHS OF PLANT HAVING NAME OF APPELLANT INSCRIBED ON THE WIND MILL. IT IS ALSO NOT DISPUTED THAT THE APPELLANT HAS REFLECTED THE I NCOME ON ACCOUNT OF SALE OF ELECTRICITY TO GOVERNMENT OWN ED ELECTRICITY BOARDS. THE A.O. HAS DISCUSSED THE CONT ENTS OF PURCHASE AGREEMENT AMONGST THE APPELLANT AS POWE R PRODUCER, M/S ENERCON INDIA LTD. AS DEVELOPER AND M /S RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LTD. IT HAS BEEN NOTICED BY THE A.O. THAT PERMISSION TO SET THE WIND ENERGY HAS BEEN GIVEN TO M/S ENERCON INDIA LTD. AND FURTHER IT IS ALSO BROUGHT OUT THAT M/S ENERCON IND IA LTD. HAS FACILITATED THE APPELLANT TO INJECT AND TRANSMI T THE ENERGY SO GENERATED IN THE STATE GRADE. THESE ARE T HE OPERATIONAL FACILITIES PROVIDED BY M/S ENERCON INDI A LTD. HAVING TECHNICAL KNOWHOW TO THE PURCHASER OF ALL TH E WIND MILL WHICH CANNOT VITIATE THE OWNERSHIP OF THE PLANT DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 9 AND THE FACT THAT THE APPELLANT HAS MADE HUGE INVESTMENT AND RECEIVED THE SALE PROCEEDS OF ELECTR ICITY. FURTHER AT PARA 9.9 OF THE ASSESSMENT ORDER THE A.O . HAS BROUGHT OUT AND DISCUSSED VARIOUS DOCUMENTS SEIZED DURING THE COURSE OF SEARCH PROCEEDINGS WHICH ARE U SED AS INDICATORS THAT THE APPELLANT IS NOT THE REAL OW NER OF THE WIND MILL. I HAVE GONE THROUGH THESE PAPERS AND FOUND THAT NONE OF THE PAPERS AS DISCUSSED UNDER PARA9.9 ESTABLISH THAT THE APPELLANT IS NOT THE REA L OWNER OF THE WIND MILL. THE PAPER LISTED AT SERIAL NO. II. I.E. LPS-A1/35, PAGE 98 IS A LETTER WRITTEN BY SR. P ROJECT CO-ORDINATION, ENERCON INDIA LTD. WHICH IS ADDRESSE D TO M/S P.D. POWER I.E. THE APPELLANT AND ENCLOSES ORIG INAL POWER PURCHASE AGREEMENT BETWEEN D.P. POWER AND GUJARAT URJA VIKAS NIGAM. THE PAPER LISTED AT SERIA L NO. III O.E. LPS-A1/35 PAGE 46 IS ALSO A LETTER WRITTEN BY M/S ENERCON INDIA LTD. TO THE APPELLANT WHEREBY DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 10 COMMISSIONING CERTIFICATE FROM GEDA HAS BEEN FORWARDED. SIMILARLY THE PAPER LISTED AT SERIAL NO. IV, I.E. LPS-A1/35 PAGE 42 IS A LETTER FROM M/S ENERCON INDIA LTD. TO D.P. POWER INTIMATING THE DATE FOR REGISTRA TION OF LAND LEASE AGREEMENT WITH THE APPELLANT IN THE OFFI CE OF SUB-REGISTRAR, KALYANPUR, DISTRICT JAMNAGAR, GUJARA T. THE PAPER LISTED AT SERIAL NO. V, LPS A1/12 IS ALSO A LETTER WRITTEN BY G.M. (MARKETING), M/S ENERCON IND IA LTD. WRONGLY WRITTEN BY A.O. AS SR. MANAGER, PROJEC T CO- ORDINATION REGARDING REALISATION TOWARDS THE SALE O F WERS AFTER ADJUSTMENT OF PROCESSING CHARGES PERTAIN ING TO D.P. POWER. SIMILARLY, THE PAPER LISTED AT SERIA L NO. VI IE. LPS-A1/19 PAGE 56 WRONGLY WRITTEN AS PAGE NO. 52 AND CLARIFIED BY A.O. DURING THE COURSE OF APPEAL PROCEEDINGS AS IS ALSO A LETTER FROM D.P. POWER, TH E APPELLANT TO M/S ENERCON INDIA LTD. WHEREBY A CHEQU E OF RS.1.01 CRORES HAS BEEN FORWARDED FOR PURCHASE O F DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 11 VARIOUS MACHINERY RELEVANT TO WIND MILL. THE PAPER LISTED AT SERIAL NO. VII. I.E. LPS-A1/12, PAGE 49 IS ALSO FOUND TO BE THE LETTER WRITTEN BY SR. MANAGER, PROJ ECT COORDINATION TO D.P. POWER REGARDING GEDA FORM AND SUB LEASE DEED. ALL THESE DOCUMENTS ARE IN THE NATU RE OF FACILITATION GIVEN BY THE M/S ENERCON INDIA LTD. WH O WAS FOUND ENGAGED FOR LOOKING AFTER THE AFFAIRS OF THE APPELLANT. I DO NOT SEE ANY CONTENT IN THESE LETTER S TO PROVE THAT EITHER THE APPELLANT WAS NOT THE OWNER/POSSESSOR OF THE WIND MILL OR THE REALISATION ON ACCOUNT OF SALE OF ELECTRICITY WERE NOT RECEIVED BY THE APPELLANT COMPANY. 3.3 IT IS ALSO SEEN THAT M/S ENERCON INDIA LTD. IS A MULTI-NATIONAL COMPANY WHICH HAS PAID ITS PART OF T AXES ON THE INCOME EARNED ON SALE OF WIND MILLS. ACCORDI NG TO INDIAN WIND FARM DICTIONARY AS MANY AS 5000 WIND MILLS HAVE BEEN SOLD AND COMMISSIONED BY IT IN THE DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 12 SAME MANNER AS HAS BEEN DONE FOR THE APPELLANT. THE OWNERSHIP OF WIND MILL CAN BE SAID TO HAVE PASSED I N FAVOUR OF APPELLANT ON THE DATE OF INVOICE RAISED B Y THE SUPPLIER. M/S ENERCON INDIA LTD. HAS NOT CLAIMED DEPRECIATION ON THE MACHINE AT ANY STAGE AS AN OWNE R. IT IS OBSERVED THAT THE APPELLANT BESIDES INVESTING ITS CAPITAL HAS RAISED LOAN FROM SBI AGAINST HYPOTHECAT ION OF WIND MILL. THIS FACT IS FOUND EVIDENCED THROUGH A SANCTION LETTER DATED 14.9.2007. THEREFORE, INVESTM ENT MADE FOR ACQUIRING A PLOT WITH MOTIVE OF EARNING PR OFIT CANNOT BE CONSTRUED AS SIMPLE FINANCIAL TRANSACTION . 3.4 DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 153A OF IT ACT, 1961 SPECIFIC INQUIRIES HAVE BEEN F OUND MADE FROM THE SUPPLIER OF MACHINE REGARDING TRANSFE R OF OWNERSHIP AND FROM GUJARAT ELECTRICITY BOARD AND M. P. ELECTRICITY BOARD REGARDING PURCHASE OF ELECTRICITY GENERATED BY THE WIND MILL UNDER CONSIDERATION. BOT H DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 13 THE COMPANY AND ELECTRICITY BOARDS HAVE CONFIRMED T HE GENUINENESS OF TRANSACTIONS AND QUERIES RAISED BY T HE AUTHORITIES HAD BEEN APPROPRIATELY REPLIED TO. THE A.O. IS FOUND TO HAVE VISITED PERSONALLY OR THROUGH STAFF T O SEE THE INSTATLLATION AND OWNERSHIP OF THE WIND MILL . THE TECHNICAL ISSUES RELATED TO INSTALLATION OF PLANT, BILLING ETC. ARE STATED TO HAVE BEEN DISCUSSED WITH THE STA FF AT SITE. A FEW PHOTOGRAPHS OF SUCH VISITS HAVE BEEN FI LED BY APPELLANT WHICH ARE PLACED ON RECORD. THEREFORE, TH E EXISTENCE AND INSTALLATION OF WIND MILLS WITHIN SPE CIFIED PERIOD ARE NOT DISPUTED. 3.5 THE CONTENTION OF THE A.O. THAT M/S ENERCON IND IA LTD. HAS SOLD WIND MILL TO FACILITATE THE APPELLANT TO CLAIM THE DEPRECIATION HAS NOT BEEN BORNE OUT OF THE FACT S AND CIRCUMSTANCES OF THE CASE. IF THE OWNERSHIP OF MILL IS NOT TRANSFERRED WHY SHOULD THE COMPANY PAY THE TAXES ON THE INCOME EARNED ON SUCH TRANSACTION AND LOSE THE DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 14 BENEFIT OF DEPRECIATION. THE A.O. HAS ALSO NOT DISP UTED THE INCOME EARNED AND OFFERED BY APPELLANT COMPANY ON ACCOUNT OF SALE OF POWER GENERATED THROUGH THESE WI ND MILLS FOR TAXATION PURPOSE. THEN THERE IS NO REASON WHY THE OWNERSHIP AND CLAIM OF DEPRECIATION ON WIND MIL L COULD BE DOUBTED. THE INSTALLATION AND MAINTENANCE OF PLANT BY M/S ENERCON INDIA LTD. IS A NORMAL FEATURE IN TURNKEY PROJECTS PARTICULARLY WHEN THE COMPANY IS SPECIALISED IN THE FIELD OF OPERATION, TRANSMISSION AND MAINTENANCE OF SUCH PLANT. MOREOVER, IT IS OBSERVED THAT THE COMPANY HAS RECOVERED RECURRING CHARGES ON SUCH SERVICES FROM THE APPELLANT. THEREFORE, IS MY OPINI ON, THE OPERATION AND MAINTENANCE OF PLANT BY THE SUPPLIER COMPANY BEING IN POSSESSION OF TECHNICAL KNOWHOW, DOES NOT TAKE AWAY THE RIGHT OF OWNERSHIP OF WIND M ILL FROM THE APPELLANT. DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 15 3.6 TRANSFER AND SALE ARE DEFINED IN RESPECTIVE A CTS I.E. TRANSFER OF PROPERTY ACT AND SALE OF GOODS AC T. ACCORDING TO THESE STATUTES, THE SALE BECOMES COMPL ETE ONCE THE INVOICE IS RAISED IN FAVOUR OF BUYER FOR T HE PRICE PAID BY IT UNDER A CONTRACT OF SALE. THEREFORE, TRA NSFER OF OWNERSHIP IS COMPLETE ONCE THE SALE IS COMPLETE. TH E SECTION 2(47) OF INCOME TAX ACT DEFINES THE WORD TR ANSFER IN RELATION TO A CAPITAL ASSET WHICH INCLUDES SALE OR EXTINGUISHMENT OF RIGHTS THEREIN. THE SUBSECTION IV OF SECTION 2(47) INCLUDED ANY TRANSACTION INVOLVING OWNERSHIP OR ANY IMMOVABLE PROPERTY IN A PART PERFORMANCE OF CONTRACTS IN THE NATURE AS REFERRED IN SECTION 53(A) OF TRANSFER OF PROPERTY ACT. 3.7 IN THE INSTANT CASE, TRANSFER OF ASSET IS NOT O NLY COMPLETE IN TERMS OF TRANSFER OF PROPERTY ACT BY TH E BENEFITS OUT OF THE SAID ASSET HAVE ALSO BEEN DERIV ED BY THE APPELLANT IN THE FORM OF INCOME ON ACCOUNT OF S ALE OF DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 16 ELECTRICITY TO VARIOUS PARTIES. MOREOVER, THERE IN NO DISPUTE THAT THE APPELLANT HAS MADE A HUGE INVESTME NT RUNNING INTO CRORES FOR INSTALLATION OF WIND MILLS PARTLY BY OBTAINING LOAN FROM THE FINANCIAL INSTITUTIONS. THESE FACTS HAVE BEEN EXAMINED BY A.O. FROM BOOKS OF ACCOUNTS OF APPELLANT AND ASCERTAINED FROM INDEPEND ENT INQUIRIES CONDUCTED BY THE A.O. FROM ELECTRICITY BO ARDS REMITTING THE PRICE OF ELECTRICITY DIRECTLY TO APPE LLANT. THE HON'BLE SUPREME COURT IN THE CASE OF MYSORE MINERAL S LTD. VS. CIT, 239 ITR 775 (SC) HAS HELD THAT THE BE NEFIT OF DEPRECIATION HAS TO GO TO THE PERSON WHO MAKES T HE CAPITAL INVESTMENT WHICH GRADUALLY REDUCES THE VALU E OF INVESTMENT. THE RELEVANT PART OF JUDGMENT IS REPROD UCED HEREUNDER :- IN OUR OPINION, THE TERM OWNED AS OCCURRING I N SECTION 32(1) OF THE INCOME TAX ACT, 1961 MUST BE ASSIGNED A WIDER MEANING. ANYONE IN POSSESSION OF PROPERTY IN HIS OWN TITLE EXERCISING SUCH DOMINATION OVER THE PROPERTY AS WOULD ENABLE DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 17 OTHERS BEING EXCLUDED THEREFROM AND HAVING THE RIGHT TO USE AND OCCUPY THE PROPERTY AND/OR TO ENJOY ITS USUFRUCT IN HIS OWN RIGHT WOULD BE THE OWNER OF THE BUILDINGS THOUGH A FORMAL DEED OF TITL E MAY NOT HAVE BEEN EXECUTED AND REGISTERED AS CONTEMPLATED BY THE TRANSFER OF PROPERTY ACT, THE REGISTRATION ACT, ETC. BUILDING OWNED BY THE ASSESSEE THE EXPRESSION AS OCCURING IN SECTION 32(1) OF THE INCOME TAX ACT MEANS THE PERSON WHO HAVING ACQUIRED POSSESSION OVER THE BUILDING IN HIS OWN RIGHT USES THE SAME FOR THE PURPOSES OF THE BUSINESS OR PROFESSION THOUGH A LEGAL TITLE HAS NOT BEEN CONVEYED TO HIM CONSISTENTLY WITH THE REQUIREMENTS OF LAWS SUCH AS THE TRANSFER OF PROPERTY ACT AND THE REGISTRATION ACT, ETC. BUT NEVERTHELESS IS ENTITLED TO HOLD THE PROPERTY TO TH E EXCLUSION OF OTHERS. ..THE VERY CONCEPT OF DEPRECIATION SUGGESTS THAT THE TAX BENEFIT ON ACCOUNT OF DEPRECIATION LEGITIMATELY BELONGS TO ONE WHO HAS INVESTED IN THE CAPITAL ASSET IS UTILISING THE CAPITAL ASSET AND THEREBY LOSING GRADUALLY INVESTMENT CAUSED BY WEAR AND TEAR AND WOULD NEED TO REPLACE THE SAME BY HAVING LOST VALUE FULLY OVER A PERIOD OF TIME. 3.8 IN THE SAME CASE OF MYSORE MINERALS LTD. HON'BL E SUPREME COURT HAS HELD THAT KEEPING IN VIEW THE OB JECT AND SCHEME OF INCOME TAX ACT IN TAXING THE INCOME T HE REAL OWNER IS THE ONE WHO IS ENTITLED TO RECEIVE IN COME DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 18 FROM SUCH PROPERTY. THE RELEVANT PART OF DECISION I S REPRODUCED HEREUNDER :- WE ARE CONSCIOUS OF THE SETTLED POSITION THAT UNDER THE COMMON LAW, OWNER MEANS A PERSON WHO HAS GOT VALID TITLE LEGALLY CONVEYED TO HIM AFT ER COMPLYING WITH THE REQUIREMENTS OF LAW SUCH AS THE TRANSFER OF PROPERTY ACT, REGISTRATION ACT, ETC. B UT IN THE CONTEXT OF SECTION 22 OF THE INCOME TAX ACT, GHAVING REGARD TO THE GROUND REALITIES AND FURTHER HAVING REGARD TO THE OBJECT OF THE INCOME TAX ACT, NAMELY, TO TAX THE INCOME, WE ARE OF THE VIEW OWNER IS A PERSON WHO IS ENTITLED TO RECEIVED INCOME FROM THE PROPERTY IN HIS OWN RIGHT. 3.9 IN THE CASE OF MYSORE MINERALS LTD. THE DEPRECIATION WAS DISALLOWED ON THE GROUND THAT THE CAPITAL ASSET WAS NOT REGISTERED IN THE NAME OF ASSESSEE. WHEREAS IN THE CASE OF APPELLANT THE TRA NSFER OF WIND MILL HAS DULY TAKEN PLACE AS SOON AS THE SA LE BILL OF THE MACHINERY HAS BEEN RAISED AND CONSIDERATION FOR THE SAME HAS BEEN PAID. THEREFORE IN VIEW OF THE AB OVE, I DO NOT FIND ANY REASON TO DOUBT THE OWNERSHIP AND POSSESSION OF THE WIND MILL FOR CLAIMING DEPRECIATI ON AT DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 19 HIGHER RATE. THE PURPOSE OF GIVING HIGHER RATE OF DEPRECIATION ON INSTALLATION OF WIND MILL IS TO HAR NESS AND ENCOURAGE GENERATION OF NON-CONVENTIONAL SOURCE OF ENERGY. DENIAL OF SAME SHALL MEAN THE DEFEAT OF PURPOSE. IT HAS ALSO BEEN BROUGHT TO MY NOTICE THAT CIT(A) IN THE CASE OF APPELLANT HAVE ALLOWED SUCH DEPRECIATION ON HIGHER RATE AND THE DEPARTMENT HAD NOT PREFERRED FURTHER APPEALS AGAINST SUCH DECISIONS. I N THE INSTANT CASE, THE OWNERSHIP HAS BEEN FURTHER PROVED BY DIRECT INQUIRIES FROM THE SUPPLIER/ELECTRICITY BOAR D AND PHYSICAL VERIFICATION OF EXISTENCE OF SAME THROUGH SPOT VISITS. THEREFORE, I DO NOT FIND ANY ADVERSE MATERI AL BROUGHT OUT BY THE A.O. TO CONTROVERT THE FINDINGS OF THEN CSIT(A) IN THE CASE OF M/S P.D. POWER, AN ASSOCIATE CONCERN OF THE APPELLANT. 3.10 IN VIEW OF THE ABOVE DISCUSSION, IT IS APPARENT THAT THE APPELLANT HAS OWNED AND DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 20 POSSESSED THE WIND MILL MADE HUGE INVESTMENT, SOLD ELECTRICITY TO VARIOUS ELECTRICITY BOARDS, REFLECTED THE SALE PROCEEDS OF ELECTRICITY IN BOOKS OF ACCOUNTS DURING THE PERIOD UNDER CONSIDERATION. THEREFORE, THE ACTION OF A.O. DENYING THE DEPRECIATION CANNOT BE SUSTAINED. ACCORDINGLY, A.O. IS DIRECTED TO ALLOW THE DEPRECIATION @ 80% IN THE RELEVANT A.YS. FROM A.Y. 2008-09 TO A.Y. 2012- 13 AS PER PROVISIONS OF INCOME TAX ACT, 1961. THESE GROUNDS OF APPEAL ARE ALLOWED. 5. AGAINST THE ABOVE FINDINGS OF THE LEARNED CIT(A) T HE REVENUE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 6. AFTER HEARING BOTH THE SIDES, WE FIND THAT AN IDENT ICAL ISSUE, ON THE SAME FACTS AND CIRCUMSTANCES, HAS BEEN DECIDED BY THIS BENCH OF THE TRIBUNAL IN THE CASE OF RATLAM WIRES. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UN DER :- DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 21 4. WE HAVE HEARD BOTH THE SIDES. AFTER HEARING WE ARE OF THE VIEW THAT THE ASSESSEE WAS ABLE TO ESTABLISH THE OWNERSHIP OF THE WIND MILL BY WAY OF FILING FOLLOWI NG DOCUMENTS :- PURCHASE ORDERS FOR WIND TURBINE (WIND MILL) PLACED TO M/S. ENERCON INDIA LTD AS PER TURN- KEY CONTRACT I.E. FOR SUPPLY OF WIND MILL, TRANSFORMERS & TOWER, ERECTION AND COMMISSIONING OF THE WIND MILL AT SITE. COPIES OF INVOICES RAISED BY THE SUPPLIER OF WIND MILLS I.E. M/S. ENERCON INDIA LTD. DURING A.Y. 2003-04 & 2007-08 THE SUB- LEASE DEED OF LAND BY M/S. ENERCON INDIA LTD IN THE FAVOUR OF APPELLANT FOR SETTING UP THE WIND MILL. COPY OF SANCTION LETTERS ISSUED BY HDFC BANK LTD WHO SANCTIONED TERM LOAN AGAINST HYPOTHECATION OF WIND MILLS. TRI-PARTY AGREEMENTS EXECUTED ON VARIOUS DATES BETWEEN M/S. RAJSTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED (RVPN), M/S. ENERCON INDIA LTD AND THE APPELLANT WHEREBY AFTER INSTALLATION, ERECTION AND COMMISSIONING, RVPN HAD AGREED TO PURCHASE POWER GENERATED IN THE WIND MILL. COMMISSIONING CERTIFICATES ISSUED BY JVVNL AND GEDA CERTIFICATE OF GENERATION OF POWER ISSUED BY RESPECTIVE JVVNL. DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 22 INSURANCE POLICY IN FAVOUR OF OWNER OF THE WIND MILLS I.E. APPELLANT ISSUED BY INSURANCE COMPANY. SPECIMEN COPIES OF DEBIT NOTES RAISED BY THE APPELLANT TO STATE ELECTRICITY BOARDS BASED ON ELECTRICITY UNITS GENERATED AND TRANSMITTED IN POWER GRID AND COPIES OF BANK STATEMENTS OF HDFC IN SUPPORT OF PAYMENT RECEIVED. 5. WE ALSO FIND THAT THE ASSESSEES NAME ALSO FIGUR ES IN THE LIST OF WIND FARM OWNERS OF INDIA. M/S ENERC ON INDIA LTD. HAS RECORDED SALES OF WIND MILLS TURBINE TO THE ASSESSEE. THE ASSESSEE HAS ALSO GOT TERM LOAN SANCTIONED FROM THE BANK AND ALSO THE INSURANCE POLICIES IN ITS NAME. ALL THESE PROVE THE OWNERSHI P BEYOND ANY DOUBT. WE WOULD LIKE TO STATE THAT DURIN G THE SEARCH OPERATION CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 7.11.2011 THERE WAS NO INCRIMINATING DOCUMENT PERTAINING TO PURCHASES OF THE WIND MILL TURBINES WAS FOUND AND SEIZED. ONLY THE CORRESPONDENCE RELATING TO M/S D.P. POWER, WHICH IS A AN ASSOCIATED CONCERN OF THE ASSESSEE, WAS FOUND AN D SEIZED BUT THESE DOCUMENTS WERE ONLY PURCHASE INVOICES OF THE WIND MILLS, COMMISSIONING CERTIFICA TE, LAND LEASE AGREEMENT WITH ENERCON INDIA LIMITED AND LETTERS ISSUED BY ELECTRICITY BOARD REGARDING FORWA RDING OF CHEQUES IN FAVOUR OF THE FIRM. THESE PAPERS CANN OT BE SAID TO BE INCRIMINATING DOCUMENTS. THE ASSESSING OFFICER HAS PHYSICALLY VERIFIED THE LOCATION OF DIF FERENT WIND MILLS, THEREFORE, WE ARE NOT ONLY UPHOLDING TH E ORDER OF THE LEARNED CIT(A) ON THIS ISSUE BUT WE AL SO TEND TO ALLOW THE GROUNDS REGARDING VALIDITY OF DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 23 ASSESSMENT RAISED IN THE CROSS OBJECTION OF THE ASSESSEE. 6. IN THE CASE OF M/S MUKESH SANGLA HUF, IT(SS)A NOS. 94 & 95/IND/2015 AND OTHERS THE INDORE BENCH O F ITAT, INDORE, VIDE ITS ORDER DATED 5 TH NOVEMBER, 2015 HAS DECIDED AS UNDER :- 43. WE HAVE HEARD BOTH THE SIDES. WE HAVE ALSO GONE THROUGH THE CASE LAWS RELIED UPON BY BOTH THE SIDES. WE HAVE ALSO CONSIDERED VARIOUS RELEVANT FACTS OF THE CASE. IT IS A SETTLED LEGAL POSITION THAT ONCE A SEARCH AND SEIZURE ACTION HAS TAKEN PLACE U/S 132 OF THE ACT OR A REQUISITION HAS BEEN MADE U/S 132A, THE PROVISIONS OF SECTION 153A TRIGGED AND ASSESSING OFFICER IS BOUND TO ISSUE NOTICE U/S 153A OF THE ACT. ONCE NOTICES ARE ISSUED U/S 153A OF THE ACT THEN ASSESSEE IS LEGALLY OBLIGED TO FILE RETURN OF INCOME FOR SIX YEARS. THE ASSESSMENT AND REASSESSMENT FOR SIX YEARS SHALL BE FINALISED BY THE ASSESSING OFFICER. IT IS ALSO HELD BY VARIOUS COURTS THAT ONCE NOTICE U/S 153A OF THE ACT ISSUED, THEN ASSESSMENT FOR SIX YEARS SHALL BE AT LARGE BOTH FOR ASSESSING OFFICER AND ASSESSEE HAVE NO WARRANT OF LAW. IT HAS BEEN ALSO HELD THAT IN THE ASSESSMENT YEARS WHERE ASSESSMENTS HAVE BEEN ABATED IN TERMS OF SECOND PROVISO TO SECTION 153A THEN ASSESSING OFFICER ACTS UNDER ORIGINAL JURISDICTION AND ONE ASSESSMENT IS MADE FOR TOTAL INCOME INCLUDING THE ADDITION MADE ON THE BASIS OF SEIZED MATERIAL. BUT WHERE THERE IS NO ABATEMENT OF ASSESSMENTS AND ASSESSMENTS WERE COMPLETED ON THE DATE OF SEARCH THEN ADDITION CAN BE MADE ONLY ON THE DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 24 BASIS OF INCRIMINATING DOCUMENTS OR UNDISCLOSED ASSETS, ETC. IN THESE CASES THERE WAS NO INCRIMINATING DOCUMENT FOUND AND SEIZED IN RELATION TO SALE AND REPURCHASE OF SHARES OF ADROIT INDIA LTD. NO ASSESSMENT PROCEEDINGS WERE ABATED IN THESE ASSESSMENT YEARS OF THESE ASSESSEES. THUS ASSESSMENTS FOR THESE ASSESSMENT YEARS WERE COMPLETED ON THE DATE OF SEARCH. THE ASSESSMENTS WERE COMPLETED U/S 143(3) OF THE ACT READ WITH SECTION 153A/153C OF THE ACT AFTER THE SEARCH. IT IS AN UNDISPUTED FACT THAT NO INCRIMINATING MATERIAL IN RELATION TO THE INVESTMENT BY THESE ASSESSEES IN SHARES OF ADROIT INDIA LIMITED DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR 2007-08 AND TRANSFER OF SHARES DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR 2008-09 AND REACQUISITION OF SOME SHARES IN THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR 2010-11 WERE FOUND AND SEIZED. THERE WAS NO ABATEMENT OF ANY PROCEEDINGS IN THESE CASES FOR THESE ASSESSMENT YEARS IN TERMS OF SECOND PROVISO TO SECTION 153A OF THE ACT. IN TH E CASE OF MUKESH SANGLA HUF, THE PROCEEDINGS WERE INITIATED U/S 153C OF THE ACT. THE HON'BLE JURISDICTIONAL HIGH COURT IN A RECENT DECISION IN THE CASE OF CIT VS. MECHMAN WHILE DECIDING THE ISSUE RELATING TO ASSESSMENTS MADE BY ISSUING THE NOTICE U/S 153C OF THE ACT HAS HELD THAT THE ASSESSING OFFICER BEFORE ISSUING NOTICE U/S 153C OF THE ACT HAS TO RECORD SATISFACTION. HON'BLE HIGH COURT HELD THAT THE ASSESSING OFFICER HAVING JURISDICTION WHILST GIVING NOTICE TO SUCH OTHER PERSON (OTHER THAN THE PERSON REFERRED TO IN DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 25 SECTION 153A) MUST APPLY PROPRIO VIGORE. AFTER RECEIPT OF THE MATERIALS, THE ASSESSING OFFICER HAVING JURISDICTION IS EXPECTED TO CONDUCT INQUIRY AND DUE VERIFICATION OF THE RELEVANT FACTS BEFORE FORMING HIS PRIMA FACIE SATISFACTION. THE ASSESSING OFFICER MUST FORM HIS INDEPENDENT VIEW BEFORE ISSUE OF NOTICE. THERE IS NO SEIZED MATERIAL BELONGING TO THE ASSESSEE WHICH WAS FOUND AND SEIZED IN RELATION TO ADDITIONS MADE. IN VIEW OF THIS FACT, THERE IS NO JUSTIFICATION FOR ACTION U/S 153C OF THE ACT THAT TOO WITHOUT RECORDING SATISFACTION. IN OUR CONSIDERED VIEW, THE ASSESSING OFFICER MUST HAVE SOME MATERIAL TO PRIMA FACIE SATISFY HIMSELF TO RECORD THE SATISFACTION PRIOR TO ISSUE OF NOTICE U/S 153C OF THE ACT. HON'BLE JURISDICTIONAL HIGH COURT HELD THA T WHERE NO SATISFACTION HAS BEEN RECORDED BY THE ASSESSING OFFICER BEFORE ISSUING NOTICE U/S 153C OF THE ACT AND NO PAPERS/DOCUMENTS/ASSETS WERE SEIZED BELONGING TO THE ASSESSEE THEN NO PROCEEDINGS U/S 153C OF THE ACT CAN BE INITIATED. WITH REGARD TO THE ASSESSMENT MADE ON THE BASIS OF NOTICES ISSUED U/S 153A OF THE ACT, WE WOULD LIKE TO HOLD THAT IN A RECENT DECISION HON'BLE DELH I HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA) HAS HELD THAT COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE ASSESSING OFFICER WHILE MAKING ASSESSMENT U/S 153A OF THE ACT, ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WAS NOT PRODUCED OR NOT ALREADY DISCLOSED OR DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 26 MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. IN ALL THESE CASES NO ASSESSMENTS WERE PENDING ON THE DATE OF SEARCH FOR BOTH THE ASSESSMENT YEARS 2008-09 AND 2010-11. NO ASSESSMENTS WERE ABATED IN TERMS OF SECOND PROVISO TO SECTION 153A OF THE ACT. HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA) HAS CONSIDERED VARIOUS HIGH COURT DECISIONS RELIED UPON BY THE LEARNED DR. THE HON'BLE DELHI HIGH COURT HAS CONSIDERED THE CASES OF CANARA HOUSING DEVELOPMENT CO. VS. DCIT; MADUGULA VS. DCIT; CIT VS. CHETANDAS LAXMANDAS AND CIT VS. ANIL KUMAR BHATIA (SUPRA). THE ONLY DECISION OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAJ KUMAR ARORA; 367 ITR 517 RELIED ON BY THE LEARNED DR WAS NOT CONSIDERED BY HON'BLE DELHI HIGH COURT WHILE DECIDING THE ISSUE IN THE CASE OF KABUL CHAWLA. THE HON'BLE ALLAHABAD HIGH COURT HAS REVERSED THE ORDER OF THE TRIBUNAL AND REMANDED THE ISSUE TO THE TRIBUNAL TO CONSIDER THE APPEAL OF THE DEPARTMENT ON MERITS. IT IS A SETTLED LEGAL POSITION THAT WHEN TWO VIEWS ARE POSSIBLE ON A PARTICULAR ISSUE THEN THE VIEW FAVOURABLE TO THE ASSESSEE SHOULD BE FOLLOWED AS HELD BY THE HON'BLE APEX COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS; 88 ITR 192. RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE APEX COURT, WE ALLOW THESE GROUNDS OF APPEAL OF THE ASSESSEE. THERE WAS NO ABATEMENT OF ASSESSMENTS FOR THESE YEARS. HENCE, IN ABSENCE OF ANY INCRIMINATING DOCUMENTS, NO ADDITION IS CALLED FOR. DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 27 7. SINCE THE FACTS OF THE INSTANT CASE ARE EXACTLY SIMIL AR WITH THE FACTS OF THE CASE DECIDED BY THE TRIBUNAL (SU PRA), WE DISMISS ALL THESE APPEALS OF THE REVENUE ON THIS GR OUND. 8. WITH REGARD TO THE DEDUCTION U/S 80IA OF THE AC T IN THE A.YS. 2010-11 TO 2012-13, WE FIND THAT A SIMILAR I SSUE WAS DECIDED BY THIS BENCH OF THE TRIBUNAL VIDE ITS OR DER DATED 11 TH JANUARY, 2016 IN THE CASE OF RATLAM WIRES, BEING IT(SS) A NOS. IT(SS)A NOS.23 TO 25/IND/20 15, 26 & ITA 74/IND/2015 WHEREIN THE CLAIM OF THE ASSESSEE W AS ALLOWED. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UN DER :- THE OTHER ISSUE RAISED IN THE REVENUES APPEAL FO R THE ASSESSMENT YEARS 2011-12 AND 2012-13 IS WITH REGARD TO DEDUCTION CLAIMED U/S 80IA ON THE PROFIT EARNED FROM THE BUSINESS OF WIND MILLS. THE LEARNED CIT(A) GRANTED THE RELIEF BY HOLDING AS UNDER:- 7.1 I HAVE GONE THROUGH THE RELEVANT PARAS OF ASSESSMENT ORDER AND ALSO THE WRITTEN SUBMISSIONS AND THE SAME HAS BEEN CONSIDERED IN THE LIGHT OF DISCUSSION MADE ON THE ISSUE OF ALLOWABILITY OF DEPRECIATION @ 80% ON WIND MILL. IT IS OBSERVED THA T DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 28 THE A.O. AT PARA 13.3 HAS BROUGHT OUT THAT DEDUCTIO N U/S 80IA IS AVAILABLE ONLY TO AN UNDERTAKING WHICH IS ENGAGED IN THE BUSINESS OF GENERATION OF POWER BUT NOT AVAILABLE TO PERSONS WHO EXECUTES WORKS CONTRACT. FURTHER IT IS REASONED THAT SINCE THE APPELLANT COMPANY IS NOT INDUSTRIAL UNDERTAKING FOR GENERATIO N OF POWER, THE EXEMPTION U/S 80IA IS NOT ALLOWABLE. FURTHER, IN THE NEXT PARA I.E. PARA 10.4 THE A.O. H AS WENT ON TO ADD THAT THE KATARIYA GROUP OF CONCERNS ARE MERE FINANCERS OF POWER GENERATING PROJECTS. TH EY HAVE NEITHER DEVELOPED NOR MAINTAINED OR OPERATED T HE INFRASTRUCTURE FACILITY TO GENERATE POWER. THE A.O. KEEPING IN MIND THE ABOVEMENTIONED REASONS HAS DISALLOWED THE CLAIM OF APPELLANT U/S 80IA FOR THE RELEVANT ASSESSMENT YEAR AMOUNTING TO RS.23,28,653/-. I HAVE GIVEN MY DETAILED FINDING REGARDING THE OWNERSHIP, POSSESSION, INVESTMENT BY APPELLANT AND EARNING OF INCOME OUT OF SALE PROCEED S OF ELECTRICITY WHILE DISCUSSING THE GROUND NO. 6 TO 8 WHEREIN IT HAS BEEN DECIDED THAT THE APPELLANT HAS BEEN THE OWNER OF WIND MILL PRODUCT WITH SUBSTANTIA L INVESTMENT, PARTLY THROUGH BORROWINGS FROM THE FINANCIAL INSTITUTIONS. IT IS ALSO FOUND THAT THE OWNERSHIP OF THE WIND MILL HAS ALSO TRANSFERRED TO THE APPELLANT THROUGH RESPECTIVE STATUTES OF TRANSFER O F PROPERTY ACT AND TRANSFER OF GOODS ACT. PROPER BILL ING OF THE MACHINERY HAS BEEN MADE AND THE CONSIDERATIO N FOR THE WIND MILL HAS BEEN PAID. THERE IS NO DISPUT E THAT THE APPELLANT HAS NOT ONLY EARNED INCOME ON ACCOUNT OF SALE OF ELECTRICITY GENERATING IN THE WI ND MILL UNDER CONSIDERATION BUT ALSO HAS OFFERED SAME FOR TAXATION PURPOSES. THEREFORE, THE REASONS GIVENBY T HE A.O. FOR REJECTING THE CLAIM OF THE APPELLANT U/S 8 0IA DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 29 HAS NOT BEEN FOUND JUSTIFIABLE. MOREOVER, THE A.O. HAS NOT DISCUSSED NON FULFILMENT OF CONDITIONS LAID DOW N U/S 80IA TO BE ELIGIBLE TO MAKE THE CLAIM UNDER THE SAID SECTION EXCEPT STATING THAT THE APPELLANT IS N OET AN INDUSTRIALUNDERTAKING AND HAS NEITHER DEVELOPED NOR MAINTAINED AND OPERATED THE INFRASTRUCTURE FACILITITTY TO GENERATE POWER. I DO NOT SUBSCRIBE T O THE VIEW OF A.O. AS THESE ARE NOT THE CONDITIONS PRECED ENT TO THE CLAIM OF EXEMPTION U/S 80IA. SECTION 80IA4(I V) SPECIFIES THE APPLICABILITY OF THIS SECTION WHICH S TATES THAT AN UNDERTAKING WHICH IS SET UP IN ANY PART O F INDIA FOR GENERATION OR GENERATION AND DISTRIBUTION OF POWER AT ANY TIME DURING THE PERIOD SPECIFIED IN TH E RELEVANT SECTION. THEREFORE, THE ACTION OF A.O. IN REJECTING THE CLAIM OF THE APPELLANT HAS BEEN FOUND MISPLACED PARTICULARLY WHEN THE A.O. HAS NOT FOUND ANY INFIRMITIES IN COMPLETE YEARWISE DETAILS OF INC OME, DEPRECIATION AND CLAIM U/S 80IA AS HAS BEEN REPRODUCED ABOVE AS WELL AS REPRODUCED IN THE ASSESSMENT ORDER. ACCORDINGLY, THE A.O. IS DIRECTE D TO ALLOW THE CLAIM OF THE ASSESSEE U/S 80IA FOR THE RELEVANT ASSESSMENT YEAR. THIS GROUND OF APPEAL IS ALLOWED. 8. WE HAVE ALREADY UPHELD THE ORDER OF THE LEARNED CIT(A) WITH REGARD TO OWNERSHIP OF THE WIND MILL. W E ALSO SUSTAIN THE ORDER OF THE LEARNED CIT(A) ON THI S ISSUE. THE ASSESSEE SHALL BE ENTITLED FOR DEDUCTION U/S 80IA AS HELD BY THE LEARNED CIT(A). THIS GROUND IS, THEREFORE, DISMISSED. 9. SINCE THE FACTS OF THE INSTANT CASE ARE EXACTLY SIMIL AR WITH THE FACTS OF THE CASE DECIDED BY THE TRIBUNAL (SU PRA), DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 30 FOR THE REASONS GIVEN THEREIN, WE DISMISS THIS GROUN D OF THE REVENUE. 10. IN THE CROSS OBJECTIONS FILED BY THE ASSESSEE TH E ISSUE RAISED IS AGAINST VALIDITY OF ASSESSMENT U/S 153A OF TH E ACT. AT THE TIME OF HEARING, THE LD. COUNSEL FOR TH E ASSESSEE DID NOT PRESSED THIS ISSUE. WE, THEREFORE, DISMISS THE SAME. 11. IN THE RESULT, DEPARTMENTAL APPEALS AND CROSS OBJECTIONS OF THE ASSESSEE STAND DISMISSED. PRONOUNCED IN OPEN COURT ON 29.2.2016 SD/- SD/- (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 29.2.16 DN/- DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 31 DCIT VS. D.P. POWER IT(SS) A NOS. 287 TO 292/IND/2014,ETC. & CO NOS.4 TO 9 & 17/IND/2015 32