Winwind Power Energy Pvt. Ltd., Tiruvallur V. DCIT Corporate Circle 3(2), CHENNAI

ITA 926/CHNY/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6755 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN
• Keywords: Depreciation; Reason to believe

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI , , ( BEFORE SHRI GEORGE MATHAN , JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.926/CHNY/2018 /ASSESSMENT YEAR: 2009-10 M/S.WINWIND POWER ENERGY PVT. LTD., NO.113 & 114, MENA KAMPALA BUILDING, GLOBUS SHOWROOM, A WING, III FLOOR, SIR THYAGARAYA ROAD, T. NAGAR, CHENNAI-600 017. VS. THE DY. COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-3(2), CHENNAI. [ PAN: AAACW 7220 P ] ( * /APPELLANT) ( +,* /RESPONDENT) * - / APPELLANT BY : NONE +,* - /RESPONDENT BY : MR.B.SAGADEVAN, JCIT - /DATE OF HEARING : 15.04.2019 - /DATE OF PRONOUNCEMENT : 15.04.2019 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-13, CHENNAI, I N ITA NO.01/CIT(A)- 13/2009-10 DATED 25.09.2017 FOR THE AY 2009-10. 2. MR. B.SAGADEVAN, JCIT, REPRESENTED ON BEHALF OF THE REVENUE AND NONE REPRESENTED ON BEHALF OF THE ASSESSEE. ITA NO.926/CHNY/2018 :- 2 -: 3. AN ADJOURNMENT PETITION HAS BEEN FILED ON 11.04. 2019. HOWEVER, AT THE TIME OF HEARING, NO ONE HAS APPEARED AND THE RE ASONS FOR SEEKING ADJOURNMENT ARE EXTRACTED HEREUNDER: THE SAID APPEAL IS POSTED BEFORE YOUR GOODSELF ON 1 5.04.2019. IN THIS REGARD, WE WISH TO STATE THAT THE ASSESSEE COMPANY IS IN THE PROCESS O F COMPILING THE DETAILS. THEREFORE WE REQUEST YOU TO KINDLY GRANT US TIME TO FURNISH THE SAME BEFORE YOUR GOODSELF. THE INCONVENIENCE CAUSED IN THIS REGARD IS MUCH REG RETTED. SINCE THE ABOVE REASONS ARE NOT SUPPORTED IN THE P RESENT CASE, THE ADJOURNMENT APPLICATION STANDS REJECTED AND THE APP EAL OF THE ASSESSEE IS BEING DISPOSED OFF ON MERITS. 4. IT WAS SUBMITTED BY THE LD.DR THAT EVEN BEFORE T HE LD.CIT(A) NINE OPPORTUNITIES HAD BEEN GIVEN TO THE ASSESSEE AS HAS BEEN EXTRACTED BY THE LD.CIT(A) IN PAGE NO.3 OF HIS ORDER. IT WAS A SUBMISSION THAT THERE WAS NO REPRESENTATION FROM THE ASSESSEE. IT WAS A FURTHER SUBMISSION THAT BEFORE THE AO ALSO, NO EVIDENCE HAS BEEN PRODU CED TO SUBSTANTIATE THE CLAIM THAT THE ASSESSEE COMPANY HAD STARTED PRO DUCTION DURING THE AY 2009-10. IT WAS A SUBMISSION THAT AS NO EVIDENCE H AS BEEN PRODUCED EITHER IN THE ASSESSMENT PROCEEDINGS NOR BEFORE THE LD.CIT(A) NOR BEFORE THE TRIBUNAL TO SUBSTANTIATE THAT THE PRODUCTION HA S BEEN STARTED DURING AY 2009-10. THE ORDER OF THE AO AND THE LD.CIT(A) IN DISALLOWING THE CLAIM OF DEPRECIATION AS MADE BY THE ASSESSEE WAS L IABLE TO BE UPHELD. IN REGARD TO THE ISSUE OF RE-OPENING, IT WAS A SUBMISS ION THAT THE REASONS RECORDED HAD BEEN PROVIDED TO THE ASSESSEE AND THE OBJECTIONS OF THE ASSESSEE HAD ALSO BEEN CONSIDERED AND THE SAME WAS REJECTED BY AN ORDER ITA NO.926/CHNY/2018 :- 3 -: PASSED ON 27.01.2015 AND THAT HAVING NOT BEEN CHALL ENGED THE RE-OPENING WAS LIABLE TO BE UPHELD. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.DR AND THE GROUNDS RAISED. 6. A PERUSAL OF THE GROUNDS RAISED BY THE ASSESSEE SHOWS THAT THE ASSESSEE HAS RAISED TWO ISSUES, ONE AGAINST RE-OPEN ING OF ASSESSMENT AND SECOND AGAINST DISALLOWING THE CLAIM OF DEPRECIATIO N ON PLANT & MACHINERY AND PATTERNS. IN THE GROUNDS, THE ASSESSEE CLAIMS TO HAVE COMMENCED ITS OPERATIONS OF GENERATING POWER FROM THE WIND TURBIN E MACHINES INSTALLED, DURING THE AY 2009-10. IN REGARD TO THE ISSUE OF R E-OPENING, THE ARGUMENTS ARE THAT THERE IS NO REASON TO BELIEVE. IN THE PRESENT CASE, A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE AO HAS RECORDED HIS REASONS FOR RE-OPENING. THE ASSESSEE HAS OBJEC TED THE REASONS AND THE AO ALSO DISPOSED OFF THE OBJECTIONS OF THE ASSE SSEE BY PASSING A SPEAKING ORDER DATED 27.01.2015. BEFORE THE LD.CIT( A) ALSO, IT IS NOTICED THAT THE ASSESSEE HAS NOT CHALLENGED THE RE-OPENING . A PERUSAL OF THE ORDER OF THE LD.CIT(A) CLEARLY SHOWS THAT THE LD.CI T(A) HAS TAKEN INTO CONSIDERATION THE FACT THAT THE SUBSTANTIAL OPPORTU NITIES HAD BEEN GIVEN TO THE ASSESSEE TO SUBSTANTIATE ITS CLAIM THAT THE PRO DUCTION HAS BEEN STARTED DURING THE AY 2009-10 BUT THE ASSESSEE HAS BEEN UNA BLE TO PRODUCE ANY EVIDENCE. EVEN BEFORE THE TRIBUNAL, THE APPEAL WAS FILED BY THE ASSESSEE ON 19.03.2018 AND THE APPEAL WAS FIXED FOR HEARING ON 29.08.2018, ADJOURNED AT THE REQUEST OF THE ASSESSEE TO 24.12.2 018. NONE ITA NO.926/CHNY/2018 :- 4 -: REPRESENTED ON BEHALF OF THE ASSESSEE ON 24.12.2018 AND THE SAME WAS AGAIN ADJOURNED TO 15.04.2019, ON WHICH DATE ALSO N ONE REPRESENTED ON BEHALF OF THE ASSESSEE. IN THE APPEAL FILED BEFORE THE TRIBUNAL, THE ASSESSEE HAS RAISED BOTH THE ISSUES ON MERITS AND O N RE-OPENING. NO EVIDENCE HAS BEEN PRODUCED TO SUBSTANTIATE THE CLAI M THAT THE PRODUCTION HAS COMMENCED DURING THE AY 2009-10. IN RESPECT OF THE RE-OPENING ALSO OTHER THAN REFERRING TO VARIOUS CASE LAWS, NO EVIDE NCE HAS BEEN PRODUCED TO SUBSTANTIATE ITS ARGUMENTS IN RESPECT OF THE RE- OPENING. THIS BEING SO, WE FIND NO ERROR IN THE ORDER OF THE LD.CIT(A) OR T HAT OF THE AO WHICH CALLS FOR ANY INTERFERENCE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 15 TH DAY OF APRIL, 2019 IN CHENNAI. SD/- SD/- ( ) ( INTURI RAMA RAO ) /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) /JUDICIAL MEMBER /CHENNAI, 4 /DATED: 15 TH APRIL, 2019. TLN - +56 76 /COPY TO: 1. * /APPELLANT 4. 8 /CIT 2. +,* /RESPONDENT 5. 6 + /DR 3. 8 ( ) /CIT(A) 6. /GF