TMI Blog2012 (12) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... SHRI ABRAHAM P.GEORGE AND SHRI VIKAS AWASTHY, JJ. Appellant by : Mr. N.Quadir Hoseyn, Advocate Respondent by : Dr. S.Moharana, CIT DR ORDER PER VIKAS AWASTHY, JUDICIAL MEMBER: The appeal has been filed by the assessee impugning the order of the CIT(A), Tiruchirapalli dated 25.02.2011 whereby the claim of depreciation of the assessee on windmill has been rejected. 2. The brief facts of the case are that the assessee is a manufacturer and exporter of cotton fabrics. The assessee is also engaged in production and sale of power generated by windmill. The assessee filed return of income relevant to the assessment year 2005-06 on 12.4.2006 returning total loss of Rs.5,19,150/-. The return of the assessee was proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive Engineer, Udumalpet. During the course of survey, it was found that a number of windmills that were not commissioned on 31.3.2005 were certified as commissioned by TNEB. It was alleged that the said Executive Engineer had given list of cases where service connections have been completed and the name of the assessee had also figured in the list. However, during the course of assessment proceedings the Assessing Officer neither provided the copy of the statement of the Executive Engineer nor the copy of letters wherein the Executive Engineer had certified that in all the cases service connections have been completed. The counsel for the assessee submitted that any such statement recorded under section 133A has got no evidentiary value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the capacity of the windmill i.e. 750 KW the generation as certified by the EE (O M) Udumalpet upto 12.4.2005 is just 400 units from which it can be reasonably concluded that the commercial production has not started as on that date. In the absence of the generation of any electricity units as on 31.3.2005 and also going by the report of the EE, Wind farm project that the unit was not commissioned as on 31.03.2005, the CIT(A) may conclude that the windmill was not put into operation during the relevant previous year and therefore no depreciation is allowable for the assessment year 2005-06. The CIT(A) was carried away with the observation of the Assessing Officer in remand report since there was no commercial production mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of asset during the relevant previous year which is in dispute. The counsel for the assessee has referred to a certificate dated 5.5.2005 issued by Executive Engineer (O M), Udumalpet, at page 27 of paper book which certifies that HT supplied for the windmill generator was effected on 31.3.2005 satisfactorily. At page 28 to 31 of the paper book there is a test report from TNEB which clearly indicates that test run of the windmill was conducted on 31.3.2005 and the date of commencement of supply is 31.3.2005. At page 34 of the paper book, there is a statement showing energy generated by the windmill between 31.3.2005 and 12.4.2005 and a certificate issued by the Executive Engineer (O M), Udumelpet at page 35 of the paper book stating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t year 2005-06. . Our view is further fortified by the order of the co-ordinate Bench of the Tribunal in the case of Aurofood Ltd. Vs. DCIT, reported as 4 SOT 345(Chennai). The Tribunal in the aforesaid case has observed as under:- 6. We have considered the rival submissions carefully. We principally agree with the contention of the learned D.R. that depreciation can be allowed only when plant machinery has been really used. But the moot question is when plant machinery is used for trial production, whether the same can also be said to be used or not. In our considered opinion that would amount to used because wear and tear in the plant machinery would start from the day when plant and machinery is used in trial production. We al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded under section 133A of the IT Act it is not given any evidentiary value obviously for the reason that the officer is not authorized to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law, vide Paul Mathews Sons Vs. CIT (supra). 8. The learned D.R. could not show any judgement contrary to the aforesaid judgement of the Hon ble jurisdictional High Court. In view of the above, we hold 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. We set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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