TMI Blog2016 (5) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... erates on a lower level of load than its capacity would not justify holding that the machine was not put to use for the purposes of claiming depreciation under Section 32 of the Act. The TG set as recorded in the minutes of the meeting as well as in the impugned order was ready for performance. However it was unable to perform beyond the load of 1100KW for want of sufficient generation of steam. This does not detract from the finding of fact that it has been put to use to the extent of load of 1100KW for the purposes of the respondent-assessee's business. Needless to state that extent of user is not the basis of allowing depreciation under Section 32 of the Act. The view taken by the Tribunal is a finding of fact on the basis of the evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the minutes of the meeting dated 17th September, 2006 between the representative of the respondent-assessee and one M/s. TEIL who erected the TG set to conclude that the TG set was not put to use at full capacity before 30th September, 2006. Thus not entitled to the benefit of the full depreciation at 80% but only at 40%. This disallowance of 40% depreciation resulted in addition of ₹ 1.54 crorres to the taxable income. 4. Being aggrieved the respondent-assessee carried the issue in appeal to the Commissioner of Income Tax (Appeals) (CIT(A)). By an order dated 27th January, 2011 the CIT(A) dismissed the respondent's appeal upholding the view of Assessing Officer that the TG could be said to have been put to use only after fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urbine was loaded up to 1100 KW checked all parameters working satisfactorily stopped TG set due to boiler problem. 7. Here with we are adding annexure of operating parameter of mechanical Electrical at various Elect. Load, which indicates that turbine behavior is satisfactory. However, we observe by comparing steam consumption curve, 1 ton/hr. steam consumption is more. TEIL inform to DCW that further flow transmitter is to be calibrated at the time of full load trial. 8. DCW could not take turbine on full load trial, i.e., 2.5 MW since DCW has constraint to provide steam, as new boiler erection is not completed. DCW will call TEIL engineers as soon as boiler gets ready for full load trial performance test. 9. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0th September, 2006 and thus entitled to the benefit of depreciation at 80% as claimed by the respondent-assessee. This resulted in deletion of the disallowance of ₹ 1.54 crores. 7. Mr. Malhotra, the learned counsel appearing for the Revenue in support of the appeal drawing support from the minutes of the meeting held on 17th September, 2006 reproduced hereinabove submits that unless the TG set function at its full load satisfactorily the same cannot be said to be ready for use. Therefore it is submitted that the respondentassessee is not entitled to claim benefit of depreciation at full rate of 80% as allowed by the impugned order of the Tribunal. 8. We find that the impugned order of the Tribunal has on the basis of the minute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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