TaxTMI 
TaxTMI 
2015 (5) TMI 651
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.... on the following questions:- "i) Whether on the facts and in the circumstances of the case in spite of the relevant facts and evidences being on record the Hon'ble Tribunal erred in law in coming to a finding that the machinery was not used for the purpose of business and, therefore, the claim of depreciation under Section 32 of the Act for a sum of Rs. 32,77,267.00 could not be allowed, even though the cession of work/suspension of work in the factory premises of the petitioner was not on account of the petitioner, and during that time also the machinery was kept ready for use and that the factory having resumed operationa, immediately after a certain period of time and which is still running up to the present date and the further ....
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....n Gas & Industries Ltd. this court in considering the claim of an assessee for depreciation on diesel generating sets let out on lease which lease had expired but the generating sets lying in the lessee's factory under lock-out could not be used, had held the claim was allowable. Relying on M/s. Norplex Ork India,Mr. Sen submitted the word 'used' in section 32(1) of the Act should be given a reasonable meaning. Mr. Sinha, learned Advocate appearing on behalf of the respondent/Revenue reiterated the case of the Revenue made out before the authorities below. The learned Tribunal found the decision of this court in the case of CIT Vs. Oriental Coal Co. Ltd. reported in (1994) 206 ITR 682 was squarely applicable to this case in re....
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.... Therefore, the claim of the assessee has to be allowed. Accordingly, question no.4 is to be answered in the negative and in favour of the assessee." In M/s. Norplex Oak India the claim for depreciation of plant and machinery arose because work was suspended due to serious deterioration of the law and order situation in the Kashmir Valley, this court had said:- "In the case before us, the assessee was ready for doing his business. But for the adverse law and order situation, he could not actually run the factory although all the machineries were ready for use and the valuation of such machinery also depreciated notwithstanding its non-user. Notwithstanding such adverse law and order situation, the assessee did not abandon its business....
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....rder in appeal by holding as follows:- "It was the case of the assessee that by filling up the pond, no new asset has been created by the assessee, rather it was yielding rental income for the assessee and hence the expenditure incurred on such filling up should be treated as revenue expenditure. In our considered view, the opinion expressed by the revenue does not call for any interference in the facts and circumstances of the case. After filling up the pond, it has become land and it automatically raises the value of such land. In this view of the matter, we hold that the revenue authorities were justified in treating the expenditure incurred on filling up the pond to give the same the shape of land as capital in nature." Mr. Sen su....
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.... namely, the land. I, therefore, hold that the said expenditure is certainly of capital in nature and requires no interference from the undersigned. This ground is, therefore, rejected." The learned Appellate Tribunal in not interfering held that the Revenue authorities were justified in treating the expenditure incurred on filling up the pond to give the same shape of land as capital in nature. The filling up of the pond and leveling of low land is an improvement and enhancement of value being a change of a permanent character resulting in a benefit of enduring nature to the assessee. In the case of Kalyanji Mavji and Co. Vs. CIT, West Bengal II. reported in (1973) 87 ITR 228 (Cal) also cited by Mr. Sen, this court had expressed the ....