DCIT, Bangalore V. M/s Bhoruka Power Company, Bangalore

ITA 849/BANG/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63645 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 28-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SUNDARARAJAN
• Keywords: Depreciation; Additional depreciation; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBNAL BANGALORE BENCH C, BANGALORE BEFORE SHRI N.BARATHVAJA SANKAR, VICE PRESIDENT AND SHRI N.V.VASUDEVAN, JUDICIAL MEMBER ITA NO.849(B)/2011 (ASSESSMENT YEAR : 2003-04) THE DY. CIT, M/S BHOR UKA POWER CORPORATION, CIRCLE-11(2), NO.48, LAVELLE ROAD, BANGALORE-560 073 BANGALORE PAN NO.AABCB6657L VS APPELLANT RESPONDENT ASSESSEEE BY : SMT. SHEETAL, ADVOCATE REVENUE BY : SHRI A.SUNDARARAJAN, JCIT DATE OF HEARING : 10-09-2012 DATE OF PRONOUNCEMENT : -09-2012 O R D E R PER SHRI N.V.VASUDEVAN, JM: THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DATED 22- 07-2011 OF CIT(A)-I, BANGALORE, RELATING TO AY: 200 3-04. 2. IN THIS APPEAL, THE REVENUE HAS CHALLENGED THE ORDER OF CIT(A) WHEREBY THE CIT(A) HELD THAT THE INITIATION OF RE-ASSESSMENT PROCEEDINGS AGAINST THE ASSESSEE U/S 148 OF THE IT ACT TO BE BAD IN LAW. ITA NO.849(B)/2011 2 3. THE MATERIAL FACTS WHICH ARE RELEVANT FOR DECID ING THIS APPEAL ARE AS FOLLOWS; THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF GENERATION OF POWER. FOR THE AY: 2003-04 THE ASSE SSEE FILED RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.4,72,74,86 3/-. DURING THE PREVIOUS YEAR, THE ASSESSEE ACQUIRED AND INSTAL LED 5 WIND TURBINES AND MACHINERY ACQUIRED FROM M/S SUZLON LIM ITED, AHMEDABAD. ON 30-03-2003 THE AFORESAID WIND TURBINE S WERE INSTALLED BY THE ASSESSEE AT BARAMSAR VILLAGE AT RA JASTHAN. THE INSTALLED CAPACITY OF POWER GENERATION PRIOR TO INS TALLATION OF THE WIND TURBINES WAS 31.10 MW. AFTER INSTALLATION OF T HE WIND TURBINES THE INSTALLED CAPACITY OF POWER GENERATION INCREASED TO 33.20 MW. THE WIND TURBINES INSTALLED AT BARAMSAR V ILLAGE RAJASTHAN GENERATED WIND ENERGY, OTHER WISE THE ASS ESSEE WAS GENERATING ONLY HYDEL POWER. IN RESPECT OF THE 5 W IND TURBINES INSTALLED DURING THE PREVIOUS YEAR, THE ASSESSEE CL AIMED ADDITIONAL DEPRECIATION U/S 32(1)(IIA) OF THE IT ACT, THE AFOR ESAID PROVISION READS AS FOLLOWS; BMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM PERUSAL OF THE AFORESAID SHOW THAT THE ADDITIONAL DEPRECIATION WILL BE ALLOWED TO AN ASSESSEE ENCAGED IN THE BUSINESS OF MANUFACTURE OR PRODUCTION OF ANY ARTICL E OR THING. IN RESPECT OF PLANT & MACHINERY INSTALLED BY AN EXISTI NG INDUSTRIAL UNDERTAKING (EXISTING BEFORE 01-04-2002) DURING AN Y PREVIOUS YEAR IN WHICH IT ACHIEVED SUBSTANTIAL EXPANSION BY WAY OF INCREASE OF CAPACITY BY NOT LESS THAN 25% INSTALLED CAPACITY THAT ITA NO.849(B)/2011 3 THIS PURPOSE WOULD MEAN THE CAPACITY OF PRODUCTION AS ON 31-03- 2002. THE RETURN OF INCOME OF THE ASSESSEE WAS TAK EN UP FOR SCRUTINY BY THE AO AND THE AO PASSED AN ORDER U/S 1 43(3) OF THE IT ACT DATED 15-04-2005 IN WHICH THE CLAIM FOR ADDI TIONAL DEPRECIATION WAS ALLOWED BY THE AO. IT HAS TO BE M ENTIONED THAT THERE HAS BEEN NO DISCUSSION IN THE ORDER OF THE AO REGARDING CLAIM OF THE ASSESSEE FOR ADDITIONAL DEPRECIATION. THE AO HOWEVER, MADE THE FOLLOWING OBSERVATIONS WITH REGAR D TO THE WIND TURBINES INSTALLED AT BARAMSAR VILLAGE, RAJASTHAN. THE ASSESSEE IS INVOLVED IN THE GENERATION OF HYDRO POWER AT VARIOUS HYDRO ELECTRIC POWER STATIONS IN KARNATAKA. DURING THE YEAR THE ASSESSEE COMPANY AS ALSO STARTED WIND FARM PROJECT AT BARAMSAR VILLAGE IN RAJASTHAN. THE TOTAL SALE OF E NERGY DURING THE YEAR IS RS.37.335 CRORES AS AGAINST 35.27 CRORE S IN THE EARLIER YEAR. SINCE THE TURN OVER OF THE ASSESSEE COMPANY HAS EXCEEDED RS.40.00 LAKHS, THE ACCOUNTS HAVE BEEN GOT AUDITED U/S 44B OF THE IT ACT AND AUDIT REPORTS IN FORM NO.3CA & 3CD H AVE BEEN FILED IN ADDITION TO THE STATUTORY AUDIT REPORT. T HE ASSESEE COMPANY HAS ALSO FILED REPORT IN FORM NO.3AA SINCE THE COMPANY HAS CLAIMED INITIAL DEPRECIATION IN RESPECT OF MACH INERIES INSTALLED DURING THE PREVIOUS YEAR. THE INITIAL DEPRECIATION HAS BEEN CLAIMED IN RESPECT OF WIND TURBINES INSTALLED AT BA RAMSAR VILLAGE IN RAJASTHAN. THE AO WAS OF THE VIEW THAT THE CLAIM FOR ADDITIONA L DEPRECIATION WHICH WAS ALLOWED BY THE AO. IN THE A SSESSMENT PASSED U/S 143(3) OF THE ACT SUFFER FROM A MISTAKE APPARENT ON RECORD. THE AO ACCORDINGLY, ISSUED A NOTICE DATED 23-11-2007 POINTED OUT THAT THE MISTAKE PROPOSED TO BE RECTIFI ED AS FOLLOWS; ITA NO.849(B)/2011 4 PARTICULARS OF MISTAKE PROPOSED TO BE RECTIFIED: ADDITIONAL DEPRECIATION AMOUNTING TO RS.50,3,750/- HAS BEEN CLAIMED IN RESPECT OF NEW ADDITIONAL PLANT INSTALLED ON 30-03-2003. AS PER PROVISIONS OF SEC.32(1)(IIA) OF THE ACT, ADDITIONAL DEPRECIATION IS AVOIDABLE IN THE CASE OF ANY INDUSTRIAL UNDERTAKING EXISTING BEFORE APRIL, 2002 IF IT ACHIE VES SUBSTANTIAL EXPANSION BY WAY OF INCREASE IN INSTALLED CAPACITY BY NOT LESS THAN 25%. WHEREAS IN THE CASE OF THE COMPANY THE I NSTALLED CAPACITY OF THE COMPANY HAS GONE FROM 3.10 MW TO 33 .20MW AS PER THE ANNUAL REPORT FOR 2002-03. THE PERCENTAGE OF INCREASE IN THE INSTALLED CAPACITY IS 6.75% WHICH IS FAR LESS T HAN 25%. HENCE DEPRECIATION ON NEW PLANT AND MACHINERY (WIND MILL) ACQUIRED ON 30-03-2003 MAY NOT BE ALLOWED AS DEDUCT ION. THE ASSESSEE BY ITS REPLY DATED 07-12-2007 CLAIMED THAT THE ADDITIONAL DEPRECIATION WAS JUSTIFIED UNDER THE PRO VISIONS OF SEC.32(1)(IIA) OF THE ACT, 1961 AND CLAUSE- OF FIRS T PROVISO THERETO. THE CLAIM OF THE ASSESSEE IN THIS REGARD WAS A FOLL OWS; WE WOULD LIKE TO SUBMIT THAT THE COMPANY HAS ESTA BLISHED A WIND POWER PROJECT, A SEPARATE NEW UNIT WAS ESTAB LISHED BY THE COMPANY IN JAISALMER IN RAJASTHAN. THE COMPANY EST ABLISHED FIRST TIME A NEW WIND POWER GENERATION UNIT AT RAJA STHAN AND STARTED GENERATION DURING THE FINANCIAL YEAR 2002-0 3. THE WIND POWER PROJECT ESTABLISHED BY THE COMPANY IS BY WAY OF SEPARATE LICENCE GRANTED Y THE GOVERNMENT OF RAJASTHAN FOR D EVELOPMENT OF WIND POWER PROJECT IN THE STATE AND IT IS INDEPENDE NT UNITS AND GENERATING POWER AND THEY ARE DEFINED AS NEW UNIT COMING WITHIN THE PURVIEW OF CLAUSE-A OF SEC.32(IIA) OF TH E IT ACT AND NOT EXPANSION OF THE EXISTING UNIT AS DEFINED IN CLAUSE B) OF SEC.32(IIA) ITA NO.849(B)/2011 5 OF THE ACT. IN VIEW OF THE DEFINITION OF NEW UNIT THE APPLICABILITY OF EXPANSION OF CAPACITY BY 25% AS DEFINED IN CLAUS E B) SEC.32(IIA) OF THE ACT, DOES NOT APPLY TO THE NEW UNIT. AFTER RECEIPT OF THE AFORESAID REPLY OF THE ASSESSE E, THE AO DID NOT PASS ANY ORDER U/S 154 OF THE ACT. HOWEVER, ON 15-04-2009, THE AO ISSUED A NOTICE U/S 148 OF THE ACT FOR REASSESSMENT PROCEEDINGS FR ASSESSMENT YEAR 2003-04 AND THE REASONS RECORDED BY THE AO FOR INITIATING S UCH RE- ASSESSMENT PROCEEDINGS WERE AS FOLLOWS; IN THE RETURN OF INCOME FILED FOR THE AY: 2003-04, ADDITIONAL DEPRECIATION AMOUNTING TO RS.50,43,750/- HAD BEEN C LAIMED IN RESPECT OF NEW ADDITIONAL PLANT INSTALLED ON 30-03- 2003. TO EXAMINE WHETHER THE CLAIM ALLOWED IS WITHIN THE AMB IT OF THE PROVISIONS OF SEC.32(1)(IIA) OF THE ACT, 1961, NOTI CE U/S 148 F THE ACT WAS ISSUED ON 16-045-2009 TO RE-ASSESS THE INCO ME U/S 147 OF THE IT ACT, 1961. THE ASSESSEE OBJECTED TO THE INITIATION OF RE-ASSE SSMENT PROCEEDINGS ON THE GROUND THAT THE RE-OPENING OF TH E ASSESSMENT IS SOUGHT TO BE MADE AFTER EXPIRY PERIOD OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE ASSESSEE POINTE D OUT UNDER THE PROVISO OF SEC. 147 OF THE IT ACT, IN SUCH CASE S RE-ASSESSMENT PROCEEDINGS CAN BE INITIATED ONLY IF THERE WAS ESCA PEMENT OF INCOME CHARGEABLE TO TAX BY REASON OF FAILURE OF TH E ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. THE ASSESSEE POINTED OUT THAT WHILE COMPLETING THE ORIGINAL ASSESSMENT PROCE EDINGS, THE AO WAS FULLY CONSCIOUS OF THE CLAIM OF THE ASSESSEE AND HAD ALLOWED THE CLAIM OF THE ASSESSEE. IT WAS THEREFOR E, SUBMITTED ITA NO.849(B)/2011 6 THAT THE RE-ASSESSMENT PROCEEDINGS ARE BAD IN LAW A ND ARE LIABLE TO BE CANCELLED. THE ASSESSEE ALSO SUBMITTED THAT T HE UNIT ESTABLISHED AT BARAMSAR VILLAGE, RAJASTHAN WA A NEW UNIT AND THEREFORE, THE CONDITION OF INCREASE IN THE INSTALL ED CAPACITY BY REASON OF INSTALLATION OF NEW PLANT & MACHINERY WOU LD NOT BE APPLICABLE. THE ASSESSEE SUBMITTED THAT SUCH CONDI TIONS WILL BE APPLICABLE ONLY WHEN AN EXISTING UNIT CLAIMS ADDITI ONAL DEPRECIATION. THE AO HOWEVER, REJECTED THE CONTENTI ON AS PUT FORTH ON BEHALF OF THE ASSESSEE. HE HELD THAT INI TIATION OF RE- ASSESSMENT PROCEEDINGS WAS VALID. HE ALSO HELD THA T A PARTY TO THE PROCEEDINGS CANNOT GET AWAY BY WILLFULLY MAKING A FALSE STATEMENT AT THE TIME OF ORIGINAL ASSESSMENT AND WH EN THAT FALSITY COMES TO NOTICE, THE ASSESSEE CANNOT TURN AROUND AN D SAY THAT YOU HAVE ACCEPTED MY CASE AND YOU CANNOT NOW DO ANY THING. IN THIS REGARD, THE AO REFERRED TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF PHOOLCHAND BAJRANG LAL VS ITO (203 ITR 456) AND M/S RAYMOND WOOLLEN MILLS LTD., VS ITO AND OTHER (236 ITR 34(SC) WITH REGARD TO THE OTHER CONTENTIONS, THE AO HELD THAT THE UNIT AT BARAMSAR VILLAGE, RAJASTHAN WAS NOT A NEW U NIT. THE FOLLOWING OBSERVATIONS ARE RELEVANT; THE CONTENTION OF THE ASSESSEE COMPANY THAT THE WIND MILL PROJECT AT BARAMSAR VILLAGE IN RAJASTHAN IS A NEW U NIT AND THE P & M HAVE BEEN ACQUIRED AND INSTALLED AFTER 31-03-20 02 AS SUCH THE ADDITIONAL DEPRECIATION IS RIGHTLY CLAIMED IS N OT ACCEPTABLE, FOR THE REASON THAT THERE IS NO RECOGNITION AS TO THE S EPARATE INDUSTRIAL UNDERTAKING FOR GENERATION OF HYDEL POWE R AND WIND ENERGY. FROM THE VIEW POINT OF ACCOUNTING THE REV ENUE GENERATED ITA NO.849(B)/2011 7 FROM WIND TURBINES TO THE NET OF TOTAL REVENUE OF P OWER GENERATION HAS TO BE CONSIDERED. IT IS NOT DISTINGUISHABLE RE LATING TO THE PARTICULAR UNDERTAKING AS SUCH. SINCE THERE IS NO NEW INDUSTRIAL UNDERTAKING I THE INSTANT CASE AS ENVISAGED IN PROV ISO A TO SEC.32(1)(IIA) OF THE IT ACT, THE ASSESSEE COMPANY IS COVERED ON LY IN PROVISO B) OF SEC.32(1)(IIA) OF THE IT ACT, 196. THEREFORE, THE CLAIM OF THE ASSESSEE HAS TO BE EXAMINED UNDER PROV ISO B) FOR ALLOWABILITY OF ADDITIONAL DEPRECIATION AT THE RATE 15%. IT MUST ALSO BE MENTIONED HERE THAT THE MAIN BUSIN ESS OF THE ASSESSEE-COMPANY IS RELATING TO GENERATION OF E LECTRICITY. THERE HAS BEEN NO NEW P & M EXISTED PRIOR TO BEFORE 31-03-2002. THE NEW P & M ACQUIRED AND INSTALLED AFTER 31-03-20 02 ARE IN RESPECT OF 05 WIND TURBINES AND MACHINERY ACQUIRED FROM M/S SUZLON LIMITED, AHMEDABAD ON30-03-2003 AND INSTALLE D THEREON. IT HAS TO BE MENTIONED HERE THAT AS PER THE SUB-CL AUSE (IIA) MENTIONED ABOVE IT IS VERY CLEAR THAT IN THE CASE O F ANY NEW MACHINERY OR PLANT WHICH HAS BEEN ACQUIRED AND INST ALLED AFTER 31 ST DAY OF MARCH, 2002, BY AN ASSESSEE ENGAGED IN THE BUSINESS OF MANUFACTU4RER OR PRODUCTION OF ANY ARTICLE OR TH ING A FURTHER 15% OF THE ACTUAL COST OF SUCH MACHINERY OR PLANT S HALL BE ALLOWED AS DEDUCTION. FROM THIS IT HAS TO BE CONSI DERED THAT WHERE ANY MACHINERY OR PLANT HAS BEEN ACQUIRED AND INSTALLED AFTER 31-03-2002, 15% ADDITIONAL DEPRECIATION IS AL LOWED SUBJECT TO SATISFYING THE CONDITION GIVEN THEREIN. AS CLAIMED BY THE ASSESSEE, THE ACQUISITION AND IN STALLATION OF 05 WIND TURBINES IS NOT A NEW INDUSTRIAL UNDERTA KING WHICH FALLS WITHIN THE PROVISO A) OF SUB-CLAUSE (IIA), WH EREAS THE NEW P & M ACQUIRED AND INSTALLED AFTER 31-03-2002 BEING TH E 05 WIND ITA NO.849(B)/2011 8 TURBINES IS AN EXPANSION OF ALREADY EXISTING INDUST RIAL UNDERTAKING. THUS, IT IS REQUIRED TO INCREASE ITS INSTALLED CAPACITY BY MORE THAN 25%. IN THE INSTANT CASE, THE INSTALL ED CAPACITY OF POWER GENERATION HAS INCREASED TO 33.20 MW FROM 31. 10 MW WHICH IS LESS THAN 25% OF THE INSTALLED CAPACITY. IT IS ALSO NECESSARY TO MENTION HERE THAT IN THE I NSTANT CASE THE MAIN BUSINESS ACTIVITY OF THE ASSESSEE IS GENER ATION OF ELECTRICITY AND DURING THE PERIOD RELEVANT TO THE A Y: 2003-04, A NEW PLANT I.E WIND TURBINE AND MACHINERY IN 5 NOS. HAD BEEN PURCHASED ON 30-03-2003 AND INSTALLED SO AS TO ADD MORE TO THE POWER GENERATION CAPACITY. AS COULD BE SEEN, HE A DDITION TO THE INSTALLED POWER GENERATION CAPACITY BY PURCHASE OF NEW PLANT/MACHINERY/WIND TURBINES HAS NOT PAVED WAY FOR CREATION OF NEW INDUSTRIAL UNDERTAKING. AS THE ADDITIONAL WIND TURBINES HAVE ALSO CONTRIBUTED POWER GENERATION ALONG WITH THE OT HER MODE OF GENERATION OF ENERGY WHICH WAS ALREADY IN EXISTENCE WITH THE ASSESSEE COMPANY. IN THE LIGHT OF THE ABOVE, AFTER CAREFULLY EXAMINI NG THE CLAIM MADE BY THE ASSESSEE AND THE APPLICATION OF THE REL EVANT PROVISIONS BROUGHT OUT ABOVE, IT IS HELD THAT THE A SSESSEE- COMPANY HAS NOT ACHIEVED THE SUBSTANTIAL EXPANSION BY WAY OF INCREASE IN INSTALLED CAPACITY BY MORE THAN 25% AS SUCH NOT ENTITLED FOR ADDITIONAL DEPRECIATION OF 15% CLAIMED AMOUNTING TO RS.50,43,750/- AND BROUGHT TO TAX. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PRE FERRED APPEAL BEFORE THE CIT(A). THE CIT(A) ACCEPTED THE PLEA OF THE ASSESEE WITH R EGARD TO THE VALIDITY OF RE-ASSESSMENT PROCEEDINGS. THE CI T(A) HELD THAT ITA NO.849(B)/2011 9 THE REASONS RECORDED BY THE AO DOES NOT SHOW THAT T HE AO ENTERTAINED BELIEF REGARDING ESCAPEMENT OF INCOME. HE HELD THAT FORMATION OF BELIEF REGARDING ESCAPEMENT OF INCOME IS A CONDITION PRECEDENT FOR INITIATING PROCEEDINGS U/S 147 OF THE IT ACT, 1961. IN THIS REGARD, THE CIT(A) REFERRED TO THE DECISION S OF THE HONBLE SUPREME COURT IN THE CASE OF JOHRI LAL VS CIT (197 3) 88 ITR 439(SC) AND GANGA SARON &SONS (P) LTD., VS ITO (1 981)130 ITR 1(SC). THE CIT(A) ALSO REFERRED TO THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS A.N.BA BALRAM IN ITA NO.400 OF 2003 DATED 04-04-2008 WHEREIN THE HONBLE KARNATAKA HIGH COURT REITERATED THE REQUIREMENT OF SEC.147 TH AT THE WORDS REASONS TO BELIEVE MEANS THAT THE BELIEF MUST BE THAT OF AN HONEST AND REASONABLE PERSON BASED UPON REASONABLE GROUNDS. COURT FURTHER HELD THAT THIS ASPECT IS OPEN TO SCRU TINY, BUT NOT THE ASPECT WITH REGARD TO SUFFICIENCY OF THE REASONS FO R ENTERTAINING A BELIEF. FOLLOWING THE AFORESAID DECISIONS, THE CI T(A) HELD THAT THE REASONS RECORDED DOES NOT DISCLOSE ANY SUCH REASON TO BELIEF ENTERTAINED BY THE AO. THE CIT(A) ALSO HELD THAT THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FUL LY AND TRULY ALL MATERIALS RELEVANT FOR THE ASSESSMENT. THE CIT(A) ACCORDINGLY, CANCELLED THE ORDER OF ASSESSMENT. AGGRIEVED BY THE ORDER OF CIT(A), THE REVENUE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. THE LEARNED DR WHILE REITERATING THE STAND OF THE REVENUE AS REFLECTED IN THE ORDER OF THE CIT(A) REFERRED TO TH E PROVISIONS OF EXPLANATION-1 OF SEC.147 OF THE IT ACT AND SUBMITTE D THAT THE PRODUCTION BEFORE THE AO OF ACCOUNT BOOK AND OTHER EVIDENCE FROM WHICH THE MATERIAL EVIDENCE WITH DUE DILIGENCE WQERE ITA NO.849(B)/2011 10 DISCOVERED BY THE AO WILL NOT NECESSARILY AMOUNT TO DISCLOSURE WITHIN THE MEANING OF PROVISO TO SEC.147 OF THE IT ACT, 1961. FURTHER, REFERENCE WAS ALSO MADE TO THE DECISION O F THE HONBLE DELHI HIGH COURT IN THE CASE OF CONSOLIDATE D PHOTO & FINVEST LTD., VS ACIT (2006) 151 TAXAMAN 41 (DEL.) REGARDING THE APPLICATION OF CHANGE OF OPINION ON WHICH RE-ASSESS MENT PROCEEDINGS CAN BE INITIATED. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED TH E STAND OF THE ASSESSEE AS PUT FORTH BEFORE THE CIT(A). WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN OUR VIEW, THE ORDER OF CIT(A) HAS TO BE UPHELD AS WE HAVE ALREADY SEEN THE AO WHILE COMPLETING THE ORIGINAL A SSESSMENT WAS FULLY CONSCIOUS OF THE DEPRECIATION MADE IN RESPECT OF THE WIND TURBINES INSTALLED AT BARAMSAR VILLAGE AT RAJASTHAN . SPECIFIC MENTION IN THIS REGARD IS MADE BY THE AO IN THE ORD ER U/S 143(3) OF THE ACT ON 15-04-2005. THE AO HAD DULY APPLIED HIS MIND WITH REGARD TO THE CLAIM OF DEPRECIATION IN RESPECT OF W IND TURBINE AND HAS ALLOWED THE CLAIM OF THE ASSESSEE. WE FAIL TO SEE AS TO HOW THE AO CAN NOW TURN AROUND AND SAY THAT THERE WAS A FAI LURE ON THE PART OF THE ASSESSEE TO FULLY AND TRULY DISCLOSE AL L THE FACTS AND MATERIAL FOR ALLOWING THE CLAIM OF DEPRECIATION FOR THE ASSESSMENT YEAR 2003-04. AS WE HAVE ALREADY SEEN UNDER THE PROVISO TO SEC.1 47 OF THE IT ACT, OPENING OF THE ASSESSMENT WHICH IS ALREADY COMPLETED U/S 143(3) OF THE ACT, AND IS PERMISSIBLE, ONLY IF THER E IS FAILURE ON THE PART OF THE ASSESSEE TO FULLY AND TRULY DISCLOSE AL L THE MATERIAL FATS REGARDING ASSESSMENT IN THE PARTICULAR YEAR IN WHIC H THE ASSESSMENT IS SOUGHT TO BE RE-OPENED. ADMITTEDLY, IN THE PREENT ITA NO.849(B)/2011 11 CASE, THERE IS NO SUCH FAILURE ON THE PART OF THE A SSESSEE AND THEREFORE, INITIATION OF RE-ASSESSMENT PROCEEDINGS WERE RIGHTLY HELD BY THE CIT(A) TO BE NOT VALID. WE THEREFORE, CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE APPEAL OF THE REVENUE . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE (N.BARATHVAJA SANKAR) (N.V.VASUDEV AN) VICE PRESIDENT JUDICIAL MEMBER BANGALORE: D A T E D : AM* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-I, BANGALORE. 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE (1+1) BY ORDER SENIOR PRIVATE SECRETARY, ITAT, BANGALORE