TMI Blog2015 (8) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... 47 of the Act also, in this respect. In fact claim of depreciation was examined by the Assessing Officer and partially disallowed with respect to other assets. The petitioner had never before the Assessing Officer contended that the asset was actually put to use in the objection that the petitioner raised to the reasons recorded by the Assessing Officer, no such contention was pressed in service. The documents, on the basis of which it is sought to be canvassed before us that there was, in fact, electricity generation during the relevant period, were not placed before the Assessing Officer either during the original assessment or in response to the notice of reopening. We would, therefore, also even otherwise not examine such factual asp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generation and distribution of electricity by utilising wind mills. Since the wind mills were neither utilised for business purpose nor the assessee derived any income out of utilisation of wind mills, the claim of the assessee for depreciation u/s. 32 was not justified. Thus there was a case of excess allowance of depreciation of ₹ 38,30,000/-. In view of this fact, I have a reason to believe that there was an escapement of income of ₹ 38,30,000/- on a/c of excess grant of depreciation claim. 3. Upon receipt of such reasons, the petitioner raised its objections, vide communication dated 17.11.2003 contending that the notice was illegal and without jurisdiction since there was no escapement of income and further that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly put to use. Electricity was generated and supplied to the Electricity Company but the payments were received subsequently. Therefore, the assertion of the Assessing Officer that the asset was not put to use is also factually incorrect. (3) Counsel lastly contended that the Assessing Officer was persuaded by the Audit party to issue the notice. He contended that the same would not be valid exercise of power, which is enjoyed by the Assessing Officer himself. 7. Learned Counsel for the Revenue on the other hand opposed the petition contending that the assessee having claimed the depreciation in the return, had not in any manner disclosed that the asset in question was never put to use during the relevant period. She further submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts. Return that the petitioner filed runs into barely 3 or 4 pages. It was not as if that such claim of depreciation was tucked away somewhere in bulky voluminous return where the Assessing Officer could, with due diligence, have discovered such claim. The Revenue, therefore, cannot fall back on Explanation 1 of the Proviso of Section 147 of the Act also, in this respect. In fact claim of depreciation was examined by the Assessing Officer and partially disallowed with respect to other assets. 11. In view of the above, conclusion, we are not examining other contentions of the petitioner. Even otherwise we may record that the petitioner had never before the Assessing Officer contended that the asset was actually put to use in the objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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