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TMI Blog1995 (2) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... achine showing that the machines were installed on 31-3-1983, that is the last day of the previous year and the machines were used for one day only in the said previous year. The Assessing Officer on enquiry found that one machine was despatched from Bangalore on 30-3-1983 and the other machine from Harihar on 29-3-1983. However, he was not satisfied about the claim that the machines were installed on 31-3-1983 by the assessee. On appeal the Commissioner (Appeals) by his order dated 30-1-1987 confirmed the order of the Assessing Officer. Against the said order the assessee did not move before the Tribunal. 3. At the time of assessment the Assessing Officer initiated penalty proceedings under section 271(1)(c) for claiming the depreciation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue had failed to prove that the explanation offered by the assessee was not genuine. Reliance was placed upon the decision of the Madras High Court in the case CIT v. E.V. Rajan [1985] 151 ITR 189 ; in the case of K.P. Kandasami Mudaliar & Sons v. CIT [1985] 156 ITR 638 (Mad.) and also in the case of CIT v. Krishna & Co. [1979] 120 ITR 144 (Mad.). On behalf of the assessee it was submitted that the order passed by the first appellate authority requires no interference because the same order was passed after taking into consideration all the circumstances of the case. On behalf of the assessee documents were filed along with the paper-book to show that in fact the machines were despatched on 29th March and 30th March, 1983. At page 14 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly cancelled the penalty. It was argued on behalf of the assessee that the genuineness of the claim has been shown. Reliance was placed upon the order of the Madras Bench 'D' of the Tribunal in the case of Ramalakshmi Spinners (P.) Ltd. v. ITO [1990] 33 ITD 327. It was further argued that since the penalty proceeding is altogether a distinct proceeding, it has nothing to do with the quantum appeal at least on the facts of the present case. It was further argued that even in a case where the machine was ready for operation but actually it was not operated, still the assessee is entitled to claim depreciation and investment allowance. Reliance was placed upon the decision of the Delhi High Court in the case of Capital Bus Service (P.) Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Ltd. [1981] 128 ITR 675 (Mad.), Capital Bus Service (P.) Ltd. v. CIT [1980] 123 ITR 404 (Delhi) at pages 413 and 414, Whittle Anderson Ltd. v. CIT [1971] 79 ITR 613 (Bom.) and CIT v. Vishwanath Bhaskar Sathe [1937] 5 ITR 621 (Bom.). Reliance was also placed on a decision of the Tribunal in the case of Hindustan Aluminium Corpn. Ltd. v. ITO in ITA No. 1752 (Cal.) of 1976-77. It was held in that case that when power was not available though the plant was ready for commencement of business, the claim for depreciation and development rebate was allowable. The Revenue's reference applications under section 256(1) and 256(2) were rejected by the Tribunal and the Calcutta High Court, respectively. When a claim is made with reference to several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortant to note, in which it was observed that the evidence available regarding the installation and commissioning of these two machines is therefore very weak and does not support the assessee's case. From the tenor of the said order, also it cannot be said that there was no evidence at all for coming to the conclusion with regard to the installation and commissioning of the machines. The word 'installed' as held in the decision in Indian Metal & Ferro Alloys Ltd.'s case, means to induct or introduce or place an apparatus for service or use. In the present case the assessee felt that even for a single operation after installation, is entitled to depreciation and investment allowance and hence the same was made by it. Ultimately it was refus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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