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TMI Blog2016 (2) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... sion petitions filed by the assessee under section 264 of the Act. In Special Civil Application No.17162/2015, additional question of additional depreciation for installation of windmills also arise. 2. Facts may be recorded from Special Civil Application No. 17147/2015. The petitioner assessee is a registered company. For the assessment year 20072008, the Assessing Officer framed assessment under order dated 28.3.2013 under section 143(3) read with section 153A of the Act. One of the additions made by him was of sum of Rs. 66.95 lacs (rounded off) under section 69C of the Act. The Assessing Officer put the assessee to notice regarding seized materials indicating, generation of cash and payment to Shri Laljeebhai and Shri Siddiquibhai who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of assessment as well as revisional order to contend that on facts, the Revenue authorities when concurrently found that there was unaccounted expenditure and source of such expenditure was unexplained, section 69C of the Act was therefore, correctly applied. 6. As is wellknown section 69C of the Act pertains to unexplained expenditure and provides that where in any financial year, an assessee has incurred any expenditure, and he offers no explanation about the source of such expenditure or part thereof, or the explanation, if any offered by him is not in the opinion of the Assessing Officer satisfactory, the amount covered by such expenditure or part thereof, would be deemed to be the income of the assessee for such financial ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erate income for payment of such commission. However, such explanation was not accepted by the Assessing Officer in the order of assessment making following observations : "3.15 Another contention of the assessee is that even if it is to be assumed that such payment is actually made, the same is to be considered as explained from the sources of generating cash by booking bogus or inflated expenses as is evident from the correspondence itself. In this regard, it is pertinent to mention that as per the provision of section 69C of the Income Tax Act, 1961 the primary onus to prove that there was an expenditure the source of which is apparently not explained is on the Revenue. However, in this case, where there is evidence found during the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Technical base, you got share of 40% to 45% in the partnership and in the line of Electrical Ceramics, because of the guidance of Pujya Bhai and further, since then I am asking back from you my right over Gujarat Agency. On the Technical base, you got share of 40% to 45% in the Partnership and in the line of Electrical Ceramics, because of the guidance of Pujya Bhai and further, since the responsibility of sales rested upon me, and hence, the right over the Agency of Western India was and is mine. If you shall not give me back my right, then I shall feel bad and I shall regret for the same. When you asked for the Gujarat Agency, at that time it was decided to under invoice for Anchor and hence, the cash income of Anchor was coming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) in the revision petition. Disallowance was confirmed on the ground that such depreciation was not allowable to assessee who was engaged in generation and distribution of power, since such explanation was included in section 32 of the Act only with effect from 1.4.2013. In this context, counsel for the assessee correctly pointed out that Division Bench of this Court in case of Commissioner of IncometaxI v. Diaminies & Chemicals Ltd. reported in (2014) 42 taxmann.com 193 (Gujarat), while considering an identical question held as under : "3. Heard Shri K.M. Parikh, learned Counsel appearing on behalf of the revenue and perused the impugned judgement and order passed by the ITAT. At the outset, it is required to be noted that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M Ltd (Supra) and in the case of Hi Tech Arai Ltd. (Supra) has committed any error in deleting the addition of Rs. 1,17,98,030/on account of disallowance of additional depreciation of Wind Electric Generator."
10. Under the circumstances, the decision of the Assessing Officer and that of the Commissioner in Special Civil Application No.17162/2015 on the question of additional depreciation on windmills installed by the assessee for the assessment year 20062007 is reversed. In other words, the assessee would be entitled to such depreciation as may be available in term of section 32 of the Act.
11. Barring the above, rest of the petitions, including rest of the portion of Special Civil Application No.17162/2015, are dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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