2017 (9) TMI 173

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....ertains to penalty and relates to the assessment of the respondent assessee for the assessment year 2005-06. In the return filed, the assessee had claimed depreciation at the full rates for installation and commissioning of windmill contending that the commissioning was over by 30.09.2004. In the assessment, the Assessing Officer relying on the materials collected during scrutiny came to the conclusion that the installation and commissioning of the windmill could not have been completed before 30th September. He, therefore, allowed only 50% of the depreciation on the ground that the machinery was utilized for less than 180 days. In appeal, CIT(A) accepted the assessee's stand and granted full depreciation. In the department's appeal, the Tr....

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....onderance of probabilities. In the instant case, the assessee has notably filed a loss return which was finally assessed at positive income owing to the aforesaid additions due to rejection in depreciation allowances. This also gives a plausible impression that there was no desire on the part of the assessee to hide or conceal its income so as to avoid payment of taxes by a positive design to mislead. It is nobody's case that the wind-mill has not been acquired and installed at all. The limited dispute is the date on which the wind-mill has been put to use. If the asset is put to use for less than 180 days as claimed by the Revenue, the assessee is entitled to half of the eligible depreciation allowance on the capital asset. The depreci....

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.... be levied as a matter of course on the ground that quantum additions have been confirmed by the superior authority. The assessee in the instant case has provided plausible evidence which are not totally bereft of merits. The Revenue on its part is also required to share the blame by not giving cross-examination of the statements recorded in survey proceedings on the supplier. On the totality of the circumstances, we fail to see culpability on the part of the assessee. The facts have been adequately disclosed and the assessee has tendered explanation thereon which were not found to be false per se. The ultimate eligibility of depreciation in one year or the other also leans in favour of the assessee. Thus, on a conspectus all the facts and ....