TMI Blog2013 (1) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The only issue in this appeal; the assessee not pressing its Ground No. 2 before us, is the restriction by the Revenue of the depreciation on a Turbine Generator (TG) set acquired by the assesse during the relevant previous year to 50% of that exigible at the full rate of 80%, on the ground that the same was put to use during the said year only after 30.09.2006 and, thus, available for use only for a period of less than 180 days. 3. We have heard the parties, and perused the material on record. 3.1 The basis of the Revenue so concluding is the copy of the Minutes (dated 17.09.2006) of the meeting between the representatives of the assesse-company and M/s. Triveni Engineering India Ltd. (TEIL), i.e., the company engaged for er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 all the operating parameters to be specified, like vibration parameters TEIL has to send vibration parameter. 10. TEIL handed over TG set to DCW for their commercial use. 11. DCW will contac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of full load trial. The TG set operating satisfactorily, though at sub-optimum levels, its commissioning was taken as complete, and was handed-over to the assesse-company for commercial use. We find no ambiguity or scope for drawing any other inference than what stands stated above, which is in fact only a restatement or paraphrasing of what is stated in the various clauses of the Minutes (reproduced above). It was explained by the ld. AR during hearing that the company, apart from the new boiler, admittedly under erection at the relevant time, had three other operational boilers. This is also evident from the assessee s written submissions before the ld. CIT(A), which find reproduction at para 4.2 of the appellate order. Rath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to any technical snag or deficiency in the equipment, but for want of adequate steam generation (an essential input). This would be akin to a machine working at below optimum or rated capacity for want of adequate raw material for being fed to it. Rather, even if some minor problems were observed, or may be encountered on working at optimum levels subsequently, which cannot be excluded or ruled out, it will not be in any manner disturb the finding that the TG set was fit for being used and actual worked at sub optimum level (1100 kw) and, thus, put to use before 30.09.2006. We are also unable to agree with the finding by the ld. CIT(A) that the TG set cannot be said to be used prior to the performance test and full load trial; the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... user in the eyes of law. However, user is essentially a matter of fact and, in any case, the said issue is beyond the scope of the present appeal as it does not arise out of the orders of the authorities below and, thus, a matter we therefore find no reason to dwell upon. 3.4 Under the given facts circumstances, therefore, we find little merit in the Revenue s case. We decide accordingly, accepting the assessee s Ground No. 1. 4. As afore-noted, Ground No. 2, which agitates the initiation of penalty u/s. 271(1)(c), was not pressed, and was even otherwise dismissed as being premature by the ld. CIT(A). His order, thus, cannot be impugned on that score; penalty proceeding being separate and distinct proceedings, while the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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