2009 (4) TMI 952 - AT - Income Tax

Summary

Issues Involved:
1. Validity of reopening of assessment u/s 147.
2. Sustenance of disallowance of depreciation on windmill.
3. Sustenance of disallowance of rent paid.
4. Sustenance of disallowance of consultancy charges.

Summary:

1. Validity of Reopening of Assessment u/s 147:
The AO issued a notice u/s 148 based on a survey report indicating that the windmill was not installed during the relevant assessment year. The Tribunal upheld the reopening, stating that the AO had a "bonafide reason to believe" that income had escaped assessment. The Tribunal found no evidence that the AO had examined the depreciation issue in detail during the original assessment.

2. Sustenance of Disallowance of Depreciation on Windmill:
The AO disallowed the depreciation claimed on the windmill, asserting it was not installed and operational before 31.03.02. The Tribunal, however, found that the assessee had provided sufficient evidence, including meter reading sheets and commissioning certificates, proving the windmill was installed and generated electricity before the end of March 2002. The Tribunal concluded that the assessee fulfilled the conditions for claiming depreciation u/s 32 of the Act and directed the AO to allow the claim.

3. Sustenance of Disallowance of Rent Paid:
The AO disallowed the rent paid to Mr. Y Birla for a property in Alibaug, questioning its business purpose. The Tribunal upheld the disallowance, agreeing with the CIT(A) that the premises were used as a guest house, and the expenditure was not allowable as business expenditure. The Tribunal cited the decisions in Britannia Industries Ltd. vs. CIT and Raja Bahadur Motilal Poona Mills Ltd. vs. CIT to support its conclusion.

4. Sustenance of Disallowance of Consultancy Charges:
The AO disallowed consultancy charges paid to Osian's Connoisseurs of Art Pvt. Ltd., doubting their business purpose. The Tribunal found that the assessee had not provided supporting material for the payment. In the interest of justice, the Tribunal set aside the orders of the revenue authorities and remanded the matter back to the AO for fresh consideration, directing the AO to decide the issue afresh after providing a reasonable opportunity of being heard to the assessee.

Conclusion:
The appeal was partly allowed for statistical purposes, with the Tribunal directing the AO to allow the depreciation claim on the windmill and to reconsider the consultancy charges after further examination. The disallowance of rent paid was upheld.