2006 (2) TMI 251 - AT - Income Tax

Summary

Issues Involved:
1. Depreciation on windmills installed at Perungudi and Kethanur in Tamil Nadu.
2. Depreciation on windmills claimed to be installed at Mandvi, Gujarat.
3. Non-consideration of specific grounds of appeal by the Tribunal.
4. Error apparent on the face of the record under section 254(2) of the Income-tax Act.

Detailed Analysis:

1. Depreciation on Windmills Installed at Perungudi and Kethanur in Tamil Nadu:
The assessee claimed depreciation of Rs. 7,60,68,275 for windmills installed at three locations: Mandvi in Gujarat, and Perungudi and Kethanur in Tamil Nadu. The Assessing Officer (AO) disallowed the depreciation claim for the windmills at Perungudi and Kethanur on the grounds that they were not installed on or before 31-3-1993, despite their existence being confirmed during inspection. The first Appellate Authority remanded the issue back to the AO, who again confirmed the disallowance. The CIT(A) did not address the windmills at Perungudi and Kethanur, focusing only on Mandvi. The Tribunal also overlooked this issue, leading to an error apparent on the face of the record. The Tribunal was directed to rectify this by remanding the issue back to the CIT(A) for specific findings on the windmills at Perungudi and Kethanur.

2. Depreciation on Windmills Claimed to be Installed at Mandvi, Gujarat:
The AO found that no windmills were installed at Mandvi, Gujarat, and disallowed the depreciation claim. The CIT(A) upheld this disallowance, noting that the assessee failed to provide evidence of installation and use of the windmills before 31-3-1993. The Tribunal confirmed this disallowance, stating that the windmills did not exist as claimed and that the assessee did not cooperate with inspection efforts.

3. Non-Consideration of Specific Grounds of Appeal by the Tribunal:
The Tribunal failed to consider the specific ground of appeal regarding the windmills at Perungudi and Kethanur, despite it being raised by the assessee. This oversight constituted an error apparent on the face of the record. The Tribunal acknowledged this error and rectified it by remanding the issue back to the CIT(A) for consideration.

4. Error Apparent on the Face of the Record under Section 254(2) of the Income-tax Act:
The Tribunal recognized that the non-consideration of a specific ground of appeal constitutes an error apparent on the face of the record. This error was rectified under section 254(2) of the Income-tax Act. The Tribunal's order dated 30-6-2003 was amended to include specific findings on the windmills at Perungudi and Kethanur and to remand the issue back to the CIT(A) for further consideration.

Conclusion:
The Tribunal rectified its previous order by acknowledging the oversight in not considering the depreciation claim for windmills at Perungudi and Kethanur. The issue was remanded back to the CIT(A) for specific findings. The disallowance of depreciation for windmills at Mandvi was upheld. The Tribunal's order was amended to reflect these changes, and the appeal was partly allowed.