TMI Blog2018 (1) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... he power on 31.03.2010 proves that wind mill at NU unit was put to use. Thus CIT(A) is not justified in confirming the disallowance of depreciation of ₹ 1,72,00,000/- which is directed to be deleted - Decided in favour of assessee - D. B. Income Tax Appeal No. 319 / 2017 - - - Dated:- 6-12-2017 - K. S. Jhaveri And Vijay Kumar Vyas, JJ. For the Appellant : Mr. Prateek Kedawat for Mr. R.B. Mathur JUDGMENT 1. By way of this appeal, the appellant has assailed the judgment and order of the tribunal whereby tribunal has allowed the appeal of the assessee and dismissed the appeal of the department. 2. Counsel for the department has framed following substantial question of law:- i) Whether in the facts and circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TDS had been deducted by the assessee. The Assessing Officer treated that the contract made was not only for sale. The nature of work was to supply, labour, liasioning, consultancy, acquisition of land, making arrangement of sale of power erection and commissioning, operation and maintenance. 4. We have heard Mr. Mathur. 5. Counsel for the department Mr. Mathur has taken us to the order of the AO as well as CIT(A) and Tribunal. 6. He has relied upon the decision of Bombay High Court in B. Malani and Co. vs. Commissioner of Income Tax (1995) 214 ITR 192 wherein it has been held as under:- Having regard to the object of depreciation allowance, the expression owned by the assessee and used for the purposes of the business and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 675 (Mad) pertains to development rebate under section 33 of the 1961 Act. The object of this provision and that of section 32 are not similar and hence the ratio of that decision also does not apply to this case. 7. On going through, the order of the CIT(A) wherein it has been observed as under:- 3.5 In this case, both the windmills at Village- Akal and Nu have been commissioned on 31.03.2010. As regards, the windmill at Village-Nu, it is seen that this windmill has generated only 5.2 units of electricity on 31.03.2010 and thereafter, no electricity has been generated in the month of April, 2010. Thereafter, in the month of May, 2010; 78089 units were generated, in the month of June, 2010; 73,950 units were generated and so on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nits in September, 2010 and so on. Therefore, this reply from the Superintending Engineer shows that this windmill which was commissioned on 31.03.2010 has continuously generated electricity from this date onwards. Therefore, the fact that a new metering arrangement was not put in place on 31.03.2010 will not alter the fact that this windmill was not put to use during the previous year in question. In view of the above discussion, it is held that windmill at Village- Akal has been put to use in this previous year and therefore, depreciation claimed on this windmill, amounting to ₹ 1,39,55,850/- is therefore, not sustainable. 8. In appeal before the tribunal, the tribunal has observed as under:- 3.7.1 As regards Ground No.1 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowance of depreciation on this windmill for this previous year amounting to ₹ 1,72,00,000/- is directed to be added to the total income. 3.7.2 During the course of hearing, the ld. AR of the assessee submitted a certificate at Page 74 of the Assessee's paper book issued by the AEN, AVVNL, Jaipur for the period from March 2010 to April 2011 in which he has explicitly mentioned that commissioning of the NU Unit was done by the assessee on 31.03.2010 and 5.2KW electricity was generated by the assessee in the month of March, 2010. The AEN, AVVNL vide his certificate at Page 74 of the assessee's paper book has given the monthwise details of generation of electricity by the assessee as under:- March 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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