9911796707
TMI Blog2004 (7) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... PL) to purchase three wind farms, namely, M/s Cauveri Farm, Yamuna Farm and Ganga Farm for a total consideration of Rs. 2,250 lakhs. 4. The main disputes that arise for consideration in these two appeals are first, relating to depreciation on tankers and second, depreciation on wind electric generators. 5. As far as first ground of appeal relating to 100 per cent depreciation on tankers used for transportation of gases is concerned, the matter is fully covered in favour of the assessee as per decision of the Tribunal in the case of the assessee for the asst. yrs. 1992-93 to 1995-96. In above years the AO has held that these tankers were to be treated as cylinders for purposes of depreciation. However, on appeal, the learned CIT(A) allowed 100 per cent depreciation and above orders were confirmed by the Tribunal in further appeal vide its order dt. 11th June, 1999, in ITA Nos. 4199 and 5017/Del/1996 and 4509/Del/1997, and it was directed that 100 per cent depreciation be allowed. The matter is thus fully covered in favour of the assessee. 6. The learned Departmental Representative tried to distinguish above order on the ground that cylinders were used for transportation of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the materials placed before me I am of the prima facie view that the petitioner is entitled to the possession of the project and the respondent cannot interfere with the same. There shall be an injunction restraining the respondent from interfering the possession of the Wind Power Ltd. till the disposal of the arbitration proceedings. Regarding the deposit of money as claimed by the petitioner the petitioner is in possession of the project which even according to the petition, is worth Rs. 22.50 crores and, therefore, the petitioner has got sufficient security and without adjudicating upon the merits of the case, I cannot direct the respondent to deposit the amount. 10. However, the respondent cannot be permitted to receive the money from the electricity board for the electricity produced by the petitioner in the project. Therefore, I am of the view in the interest of justice, electricity board should be directed to keep the amount in deposit subject to ultimate decision by the Hon ble Arbitrator. The respondent has never disputed the fact that the petitioner has completed the project and the electricity board also had approved the work done by the petitioner, otherwise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase order dt. 1st Feb., 1996, clearly envisaged that the supplier was required to maintain and operate the wind farms on behalf of the assessee for a period of two years after commissioning. The ownership of the project vested with the assessee and the supplier was in possession pursuant to the aforesaid obligation, namely, that the supplier was responsible for the operation and maintenance on behalf of the assessee. 15. The learned counsel also drew our attention to an order of the Supreme Court passed in the appeal preferred by the assessee against the order of the Debt Recovery Appellate Tribunal "DRAT". The DRAT had ordered that sums due to the assessee for supply of electricity be withheld by the Tamil Nadu Electricity Board till disposal of the matter by the Delhi High Court relating to arbitration between the assessee and M/s Wind Power Ltd. The learned counsel has urged that the observations of the Hon ble Supreme Court in its order dt. 24th Nov., 2003, proved beyond doubt that the assessee was the owner of the wind electricity generators. He has drawn our attention to the following finding of the apex Court: "Dispute arose between WPL and GGL out of the contract betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per book where it was mentioned that the project was complete but still not handed over to the assessee due to non-payment of dues. However, para 1 at p. 55 of the paper book was ignored wherein the supplier has clearly admitted that 15 wind electricity generators were commissioned by it for the assessee which were in the names of Cauveri Wind Farms, Ganga Wind Farms and Yamuna Wind Farms. Further, nowhere in the said letter the supplier commented on the fact that the ownership was not of the assessee, rather, the supplier merely mentioned that the project was not physically handed over to the assessee. It was also submitted that not only is handing over the project not material for transfer of ownership, but in the present case, the supplier was in possession of the project for operation and maintenance, as agreed between the parties. 19. As regards user of the assets, the learned counsel for the assessee contended that the electrical installations at all three farms were certified and permitted to be commissioned before 31st March, 1996, after due inspection of the electrical installations on 21st March, 1996. Safety certificates dt. 26th March, 1996, were issued by Chief Elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roject was never in doubt even in the case before the High Court. In fact, the ownership of the assessee was an admitted position before the High Court. 22. The possession of the project by M/s Wind Power Ltd. was only on account of its obligation to operate and maintain the plant, post commissioning, and not because the project had not been handed over to the assessee as owner thereof. Such permissive possession by M/s Wind Power Ltd. as a licencee cannot result in the ownership rights of the assessee being diminished in any manner. The only grievance of M/s Wind Power Ltd. was the payment of its outstanding dues, which were disputed by the assessee and there was no claim made by M/s Wind Power Ltd. asserting ownership over the project. 23. This fact is also clear from the Hon ble Supreme Court s order placed on record by the assessee. The Supreme Court has taken note of the arbitrator s award dt. 7th Jan., 2002, wherein it was held that the project belonged to the assessee and has allowed the appeal of the assessee against the DRAT s order directing TNEB to withhold funds belonging to the assessee. It is also not in dispute that the assessee was recovering monies from TNEB fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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