OMKAR TEXTILE MILLS (P) LTD. v. INCOME TAX OFFICER
[Citation -2007-LL-1106-1]

Citation 2007-LL-1106-1
Appellant Name OMKAR TEXTILE MILLS (P) LTD.
Respondent Name INCOME TAX OFFICER
Court ITAT
Relevant Act Income-tax
Date of Order 06/11/2007
Assessment Year 1995-96
Judgment View Judgment
Keyword Tags commercial operation • electricity board • trial production • business purpose • wind mill • sales-tax • plant
Bot Summary: The trial run was also undertaken for the WTHS. In support of these contentions, the assessee had submitted the following documents before the AO: Certificate of the Gujarat Energy Development Agency in connection with share of power certificate wherein it is certified that 11.9 KWH were supplied to the GEB in the month of March, 1995. Of Electricity, Gandhinagar, wherein it is stated that power from assessee s wind farm has been synchronized with DEB Grid on 27th March, 1995. The CIT(A), considering the submissions made by the assessee and on perusal of the records available before him, held that the assessee, though installed the wind mill and the same was not connected to grid during the previous year relevant to assessment year under consideration, in the absence of the connection to grid, the assessee could not have generated any electricity. In view of these facts in our opinion, there remains no doubt that the WTGS was commissioned only on 27th March, 1995 and the assessee is entitled to depreciation in respect thereof in accordance with law. The AO rejected the submissions of the assessee on the above context because the specific details as called for which were required to be furnished as per the directions of the Tribunal, have not been furnished by the assessee company and held that the expenditures incurred of Rs. 7,82,967 were not related to the business of the assessee and have not been incurred for the purpose of business. In our opinion, if the expenditure is incurred for exploring the possibility of exports and attending exhibition in France, the expenditure would be for the purpose of assessee s business and the entire expenditure is to be allowed irrespective of whether the assessee was able to get export orders or make any export in this year or in the subsequent year. In the result, assessee s appeal stands partly allowed and Revenue s appeal stands dismissed.


These cross-appeals by assessee and Revenue, are against orders of CIT(A), for asst. yr. 1995-96. Since both these appeals have been heard together, these are being disposed of by this common order for sake of convenience. First we take up assessee s appeal in ITA No. 1085/Ahd/2007. In this case, original assessment was completed determining total income of Rs. 38,31,380 by AO. assessee company carried matter before CIT(A), who disposed of appeal after giving effect to order of CIT(A) and total income of assessee company was revised to (-) Rs. 19,83,219. Being aggrieved, Revenue carried matter in appeal before Tribunal. Tribunal, in turn, set aside following issues to file of AO for deciding same afresh: (i) Addition of Rs. 47,33,390 made on account of depreciation on wind farm plant; and (ii) Disallowance of expenses of Rs. 7,82,967 on foreign travel. first dispute is with regard to disallowance of Rs. 47,33,390 on account of depreciation on Wind Turbine Generating Sets (WTGS). AO disallowed claim of depreciation on ground that details regarding installation and commercial operation of wind mill generators have not been furnished and, therefore, in absence of required details, claim was disallowed by him. matter was carried in appeal before CIT(A), before whom assessee contended that WTGS was installed and commissioned on 27th March, 1995 and trial production was also made and some amount of energy was also generated. trial run was also undertaken for WTHS. In support of these contentions, assessee had submitted following documents before AO: (i) Certificate of Gujarat Energy Development Agency (GEDA) in connection with share of power certificate wherein it is certified that 11.9 KWH were supplied to GEB in month of March, 1995. (ii) Copy of sales-tax exemption certificate as and issued by Asstt. CST, Ahmedabad wherein effective date is 27th March, 1995. (iii) Eligibility certificate as issued by Commr. of Electricity, Gandhinagar, wherein it is stated that power from assessee s wind farm has been synchronized with DEB Grid on 27th March, 1995. (iv) Commissioning certificate as issued by GEDA wherein commissioning date is certified to be 27th March, 1995. (v) Quick test report as issued by GEDA wherein test undertaken on 27th March, 1995 is stated. (vi) Copy of letter of NEPC-MICON addressed to company wherein date of successful commissioning stated as 27th March, 1995. (vii) Copy of certificate issued by GEDA dt. 1st June, 1995 wherein it is certified that WTGS were commissioned on 27th March, 1995. (viii) Copy of form for test report wherein date of commencement is dated as 5th Feb., 1995 and completion of same as 11th March, 1995. form is signed by Hemendra Enterprise, Porbander, who was registered electric contractor and supervisor. CIT(A), considering submissions made by assessee and on perusal of records available before him, held that assessee, though installed wind mill and same was not connected to grid during previous year relevant to assessment year under consideration, in absence of connection to grid, assessee could not have generated any electricity. Therefore, CIT(A) was inclined to confirm addition made by AO. Being aggrieved, assessee is in appeal before Tribunal. On perusal of facts, we find that WTGS was commissioned on 27th March, 1995 and trial run was also undertaken which is evident from certificate of Gujarat Energy Development Agency for share of power certifying that 11.9 KW were supplied to Gujarat Electricity Board in month of March, 1995. Sales-tax exemption certificate with effective date as 27th March, 1995, eligibility certificate issued by Commr., commissioning certificate by GEDA, quick test report issued by GEDA letter of NEPC-MICON for successful commissioning and all certifying that WTGS was commissioned on 27th March, 1995. In view of these facts in our opinion, there remains no doubt that WTGS was commissioned only on 27th March, 1995 and, therefore, assessee is entitled to depreciation in respect thereof in accordance with law. AO is directed to allow claim of assessee. next dispute, which is common in both appeals, is with regard to foreign travel expenses of Rs. 7,82,967 on foreign travel. AO, vide his letter dt. 8th Nov., 2006, specifically requested assessee to furnish following details in light of directions of Tribunal Ahmedabad Benches: (a) Place visited, (b) duration of each visit, mentioning specific dates, (c) persons travelling with their designation, (d) purpose of visit, (e) relevant facts and figures so as to enable undersigned to work out proportion as referred to in cl. (i) of r. 6D of Act. AO, however, rejected submissions of assessee on above context because specific details as called for which were required to be furnished as per directions of Tribunal, have not been furnished by assessee company and, therefore, held that expenditures incurred of Rs. 7,82,967 were not related to business of assessee and have not been incurred for purpose of business. matter was carried in appeal before CIT(A), who confirmed disallowance out of foreign travel expenses to extent of 50 per cent of total addition made of Rs. 7,82,967 by holding that though assessee had spent substantial amount on foreign travel but had not gained any commercial benefit for year under assessment or for later year. claim is made for business purpose which only appears to be namesake. assessee could not substantiate any gains derived due to foreign trips taken up by one of directors and official. Being aggrieved, assessee is in appeal before us. It was claim of assessee that expenditures were incurred for exploring possibility of exports and attending exhibition in France. fact that export has not been effected in year under consideration or in subsequent year would be of no consequence in determining allowability of expenditure. In our opinion, if expenditure is incurred for exploring possibility of exports and attending exhibition in France, expenditure would be for purpose of assessee s business and entire expenditure is to be allowed irrespective of whether assessee was able to get export orders or make any export in this year or in subsequent year. Therefore, CIT(A) was not justified in restricting 50 per cent of expenditure incurred for travelling. We direct travelling expenses incurred by assessee in full. Now only dispute, which is left for our consideration in Revenue s appeal, is with regard to deletion of addition made of Rs. 2,98,246 on account of disallowance of vehicle expenses. Here, AO disallowed claim of assessee stating that, as specific details were not provided by assessee, therefore, expenses are considered to be not related to business of assessee and are not incurred for purpose of business. CIT(A), following decision of Gujarat High Court, in case of Sayaji Iron & Engg. Co. vs. CIT (2002) 172 CTR (Guj) 339: (2002) 253 ITR 749 (Guj), held that issue is squarely applicable to facts of assessee s case as directors were authorized to use vehicles of company. Being aggrieved, Revenue is in appeal before Tribunal. We find that issue stands covered by decision of Gujarat High Court in case of Sayaji Iron & Engg. Co. vs. CIT (supra), referred to by CIT(A) and, therefore, CIT(A) was right in allowing claim of assessee. In result, assessee s appeal stands partly allowed and Revenue s appeal stands dismissed. *** OMKAR TEXTILE MILLS (P) LTD. v. INCOME TAX OFFICER
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