2012 (12) TMI 364 - AT - Income Tax

Disallowance of depreciation on windmill - AO disallow depreciation on the basis of statement given by Executive Engineer of TNEB during survey u/s 133A Held that - Following the decision in case of S.Khader Khan Son (2007 (7) TMI 182 - MADRAS HIGH COURT) that the statement of the Executive Engineer cannot be used against the assessee. Except for the statement of Executive Engineer, the Department has no other conclusive evidence to show that the windmill was not commissioned or no unit of electricity was generated on 31.3.2005. Appeal decides in favour of assessee

Summary

Issues:
- Disallowance of depreciation on windmill

Analysis:
The case involved an appeal filed by the assessee challenging the rejection of depreciation claim on a windmill by the CIT(A). The Assessing Officer disallowed the depreciation on the windmill, stating it was not commissioned in the relevant assessment year. The assessee contended that the windmill was commissioned on 31.3.2005, supported by various documents. The counsel argued that the Assessing Officer disregarded the evidence provided, including a certificate from the Executive Engineer and test reports. The CIT(A) upheld the disallowance based on the Assessing Officer's remand report, which questioned the generation of electricity and commercial production by the windmill on 31.3.2005.

The assessee presented documents such as certificates, test reports, and agreements to prove the windmill's commissioning on 31.3.2005. The counsel emphasized that the entire payment for the windmill's erection and commissioning was made by that date, indicating its commissioning. The Tribunal analyzed the conditions for claiming depreciation, focusing on the use of the asset during the relevant previous year. Referring to the evidence provided, the Tribunal concluded that the windmill was indeed commissioned on 31.3.2005 and put to use, satisfying the conditions for depreciation claim.

The Revenue contended that the documents signed on a single day raised suspicion, and the meter reading did not specifically show usage on 31.3.2005. However, the Tribunal found the evidence presented by the assessee to be convincing, including the trial run of the windmill on 31.3.2005. The Tribunal cited a previous case to support the view that trial production constitutes "use" for depreciation purposes. The Tribunal disagreed with the reliance on the Executive Engineer's statement during a survey, highlighting that such statements under section 133A hold no evidentiary value. Without conclusive evidence against the commissioning of the windmill, the Tribunal allowed the appeal, overturning the CIT(A)'s decision to disallow depreciation on the windmill.