2012 (5) TMI 130 - AT - Income Tax

Power of Commissioner took cognizance under sec. 263 Held that - AO has issued a questionnaire for information in respect of installation of wind turbine plant and the assessee has given the reply producing all relevant documents indicating the installation of the wind turbine plant meant for generation of electricity - The assessment order passed subsequent to passing of 263 order by the Learned Commissioner certain facts noticed in this subsequent orders held that Assessing Officer has not applied his mind analytically in the original assessment proceedings - according to the Learned Commissioner, the replies do not contain complete details and AO has time to frame the assessment order but without conducting any proper inquiry, passed the assessment order - information supplied by the assessee on the power purchase agreement though were on the record but they were not looked into by the AO - it cannot be inferred that Assessing Officer has applied his mind and thereafter accepted the claim of the assessee for grant of depreciation - Commissioner set aside the order of the AO directing to conduct a fresh inquiry no error in the order of Learned Commissioner against assessee.

Summary

Issues Involved:
1. Examination of source, creditworthiness, and genuineness of share application money.
2. Examination of purpose and nature of loans and advances.
3. Examination of allowability of depreciation on Wind Power Plant and verification of electricity generation.
4. Examination of the claim for yield and shortage of rice.
5. Examination of the claim of current liability.

Detailed Analysis:

1. Examination of Source, Creditworthiness, and Genuineness of Share Application Money:
The Learned Commissioner directed the Assessing Officer to re-examine the source, creditworthiness, and genuineness of the share application money amounting to Rs. 14.95 crores. The original assessment order lacked detailed inquiry into these aspects, prompting the Commissioner to invoke section 263 of the Income-tax Act, 1961, and set aside the assessment order for a fresh evaluation.

2. Examination of Purpose and Nature of Loans and Advances:
The Commissioner found that the original assessment did not sufficiently scrutinize loans and advances amounting to Rs. 20.48 crores given to various parties. The Commissioner, therefore, directed the Assessing Officer to conduct a thorough examination of these transactions to ensure their legitimacy and purpose.

3. Examination of Allowability of Depreciation on Wind Power Plant:
The primary issue pressed by the assessee in the appeal was the allowability of depreciation amounting to Rs. 3,04,76,827 on the Wind Power Plant. The assessee argued that the Assessing Officer had issued a show-cause notice and investigated the matter during the original assessment proceedings. The assessee provided documents such as the Power Purchase Agreement with Bangalore Electricity Supply Co. Ltd., commissioning certificate, and sales bill for electricity generated. Despite these submissions, the Commissioner believed that the Assessing Officer did not conduct a proper inquiry and thus set aside the assessment order. The Tribunal, after considering the rival contentions and legal precedents, upheld the Commissioner's decision, noting that the Assessing Officer's lack of detailed analysis rendered the original assessment order erroneous and prejudicial to the interest of the revenue.

4. Examination of the Claim for Yield and Shortage of Rice:
The Commissioner directed the Assessing Officer to re-examine the claim related to the yield and shortage of rice. The original assessment order did not provide a detailed analysis or verification of these claims, necessitating a fresh inquiry to ensure accuracy and compliance with tax laws.

5. Examination of the Claim of Current Liability:
The Commissioner noted that the original assessment order failed to adequately scrutinize the claim of current liability amounting to Rs. 48.28 crores. The lack of detailed inquiry into this claim prompted the Commissioner to set aside the assessment order and direct a fresh examination by the Assessing Officer.

Conclusion:
The Tribunal upheld the Commissioner's decision to set aside the original assessment order on the grounds that it was erroneous and prejudicial to the interest of the revenue. The Tribunal emphasized that the Assessing Officer's failure to conduct a thorough and proper inquiry justified the invocation of section 263. The assessee's appeal was dismissed, and the Assessing Officer was directed to conduct fresh inquiries on the specified issues, providing the assessee an opportunity to present its case in the subsequent proceedings.