HINDUSTAN PLATINUM P, LTD, NAVI MUMBAI V. ACIT 2(1), MUMBAI

ITA 3352/MUM/2010

• Counselvise Citation: 335219914 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 07-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 29-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V V SHASHI
• Assessee Lawyers: HEENA DOSHI
• Keywords: Depreciation; Additional depreciation; Bonafide belief; Bad and doubtful debts; Revised return
• Section: 5(2); 133A; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H, MUMBAI BEFORE SHRI N.V.VASUDEVAN(J.M) & SHRI R.K.PANDA (A .M) ITA NO.3352/MUM/2010(A.Y. 2005-06) HINDUSTAN PLATINUM PVT. LTD., C-122, TTC INDUSRIAL AREA, PAWANE VILLAGE, RABALE, NAVI MUMBAI 400 703. PAN:AAACH 1111J (APPELLANT) VS. THE ACIT 2(1), AAYKAR BHAVAN, M.K.ROAD, MUMBAI 20. (RESPONDENT) APPELLANT BY : MS. HEENA DOSHI RESPONDENT BY : SHRI V.V.SHASHI ORDER PER N.V.VASUDEVAN, J.M, THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORD ER DATED 23/2/2010 OF CIT(A) IV, MUMBAI RELATING TO ASSESSMENT YEAR 20 05-06. GROUND NO.1 RAISED BY THE ASSESSEE READS AS FOLLOWS: GROUND NO.1: A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE DISALLOW ANCE OF DEPRECIATION ON WINDMILLS AMOUNTING TO RS. 4,66,68, 750/- BY HOLDING THAT THE WINDMILLS ARE COMMISSIONED AFTER 3 1/3/2005. HE OUGHT NOT TO HAVE DONE SO. B) IN DOING SO THE LEARNED CIT(A) HAS ERRED IN UPHOLDI NG THE ACTION OF THE ACIT IN SO FAR AS IT CONCERNS RELYING ON THE S TATEMENT MADE IN COURSE OF SURVEY PROCEEDINGS U/S.131 OF THE ACT IGN ORING THE FACTS OF THE CASE. THE STATEMENT IN COURSE OF SURVEY CAN NOT BE A BASIS FOR ADDITION OF DEPRECIATION IN THE ASSESSMENT WITHOUT GOING INTO THE FACTS OF THE CASE. HE OUGHT NOT TO HAVE DONE SO. C) WITHOUT PREJUDICE TO ABOVE, THE LEARNED CIT(A) SHOU LD HAVE DIRECTED TO REINSTATE THE CLOSING WDV AS ON 31/3/2005 AND AL LOW THE DEPRECIATION ON THE SAME ALONGWITH ADDITIONAL DEPRE CIATION IN A.Y 2006-07. ITA NO.3352/MUM/2010(A.Y. 2005-06) 2 2. THE ASSESSEE IS A COMPANY. IT IS ENGAGED IN T HE BUSINESS OF REFINING AND MANUFACTURING OF PLATINUM GROUP METALS. DURING THE PREVIOUS YEAR THE ASSESSEE CLAIMED TO HAVE INSTALLED THREE WIND ELECT RIC GENERATORS(WEG) OF THE VALUE OF RS. 9,82,50,000/-. THE ASSESSEE CLAIM ED THAT THE WIND MILLS WERE INSTALLED AND PUT TO USE ON 31/3/2005. THE AS SESSEE HAD CLAIMED DEPRECIATION AT 3.93 CRORES @40% BEING 50% OF THE D EPRECIATION AS THE ASSET WAS PUT TO USE FOR LAST 180 DAYS DURING THE PREVIOU S YEAR. THE ASSESSEE ALSO CLAIMED ADDITIONAL DEPRECIATION OF WEGS OF RS. 73,6 8,750/- UNDER SECTION 32(2)(IIA) OF THE INCOME TAX ACT,1961 (THE ACT) AT 50% OF THE ADDITIONAL DEPRECIATION ADMISSIBLE. THUS THE CLAIM FOR DEPRE CIATION FOR WEGS WAS MADE BY THE ASSESSEE AT A SUM OF RS. 4,66,68,750/- (RS. 3,93,00,000 + RS. 73,68,750). 3. A SURVEY UNDER SECTION 133A WAS CONDUCTED BY TH E ADIT(INV) UNIT 5(2) MUMBAI ON 17/2/2006. IN THE COURSE OF SURVEY STATEMENT OF SHRI CHANDRAKANT S. CHOKSI WAS RECORDED. QUESTION NO.5 AND ANSWER TO THE SAME IS AS FOLLOWS: Q. I AM SHOWING THE RETURN OF INCOME FILED BY YOU FOR THE A.Y 2005- 06. IT IS OBSERVED THERE FROM THAT YOU HAD INSTALL ED THREE WIND GENERATOR AT 66, 82/83 AND 62/2B, 66/83, KOOLANICKA NPATTY AND DATE OF SERVICE COMMISSION IS MENTIONED AS 31/3/2005. A S PER YOUR ACCOUNT THE COST OF WIND ELECTRIC GENERATOR IS SHOW N AT RS.9,82,50,000/- IN RESPECT OF THIS ADDITION TO TH E ASSETS, YOU HAVE CLAIMED DEPRECIATION AT RS. 3.93 CRORES. YOU HAVE ALSO CLAIMED ADDITIONAL DEPRECIATION OF RS. 73,68,750/- U/S.32(2 ). THIS CLAIM OF DEPRECIATION AND ADDITIONAL DEPRECIATION HAS BEEN M ADE ON THE GROUND THAT THE WIND ELECTRIC GENERATOR WAS ACTUALLY PUT T O USER ON 31/3/2005. IN THIS REGARD, YOU ARE REQUESTED TO CH ECK YOUR RECORDS AND GIVE ME THE EVIDENCE AVAILABLE WITH YOU TO JUST IFY YOUR STAND THAT THE WIND ELECTRIC GENERATORS WERE ACTUALLY PUT TO U SE ON 31/3/2005. ANS: I HAVE VERIFIED OUR OFFICE RECORDS. AS PER T HE COPIES OF BILLS PVR- 4600 DATED 31/3/2005 FROM NEG MICON (INDIA) PVT. LT D. DATED 31/3/2005, THE WIND ELECTRIC GENERATORS WERE INSTAL LED/COMMISSIONED ON 31/3/2005. WE WERE ADVISED AND WERE BONAFIDE IM PRESSION THAT THE DEPRECIATION CAN BE CLAIMED ON INSTALLATION/COM MISSIONING THEREOF. WE ARE BONAFIDELY NOT AWARE OF PRE-CONDIT ION OF ACTUALLY ITA NO.3352/MUM/2010(A.Y. 2005-06) 3 PUTTING INTO USER OF SUCH ASSETS. AS PER OUR RECOR DS, ELECTRICITY GENERATION STARTED WITH EFFECT FROM 30/4/2005 AND W E HAD ISSUED/ RAISED FIRST INVOICE BEARING NO.HP/WF/001-3/2005-06 DATED 09/06/2005. I AM GIVING YOU A COPY OF SUCH BILLS R AISED DATED 09/06/2005. IT IS, THEREFORE, EVIDENT THAT THE PWE R GENERATION STARTED W.E.F. 30/4/2005 ONLY, THEREFORE, FOR THE YEAR ENDE D 31/3/2005 IS APPARENTLY INCORRECT. IN VIEW OF THIS BONAFIDE AN D TECHNICAL MISTAKE WE UNDERTAKE TO REVISE THE RETURN OF INCOME FILED B Y US FOR A.Y 2005-06 BY 20/3/2006 AND WE SHALL ALSO PAY THE TAXES DUE TH EREON. A COPY OF REVISED RETURN WILL ALSO BE FURNISHED TO YOU IN DUE COURSE OF TIME. HENCE, ASSESSEE HAD VOLUNTARILY OFFERED TO WITHDRAW THE CLAIM OF DEPRECIATION AS MADE UNDER BONAFIDE BELIEF. 4. AS CAN BE SEEN FROM THE ABOVE STATEMENT IT WAS THE STAND OF THE ASSESSEE THAT THE WEGS WERE COMMISSIONED ON 31/3/2005 AND TH E ACTUAL GENERATION OF ELECTRICITY STARTED ONLY FROM 30/4/2005. IT CAN ALSO BE SEEN FROM THE STATEMENT THAT THE ASSESSEE AGREED TO FILE A REVISE D RETURN WITHDRAWING THE CLAIM OF DEPRECIATION. THE ASSESSEE HOWEVER DID NO T FILE REVISED RETURN OF INCOME. 5. THE ASSESSEE SUBMITTED BEFORE THE ASSESSING OFF ICER THAT THE WEGS WERE INSTALLED ON 24/3/2005 AND WERE COMMISSION ON 31/3/ 2005. THE ASSESSEE POINTED OUT TO THE ASSESSING OFFICER THAT ON 16/2/2 005 IT HAD PLACED AN ORDER FOR SUPPLY OF 3 NOS. OF 750 KV NEGS FOR INSTA LLATION IN ANDIYAR REGION, COIMBATORE DISTRICT, TAMIL NADU WITH M/S. NEG MICON INDIA PVT. LTD. THE PURCHASE ORDER IS AT PAGE 93 TO 96 OF THE ASSESSEE S PAPER BOOK. CLAUSE (6) OF THE PURCHASE ORDER SPECIFIES THAT WEGS HAVE TO B E COMMISSIONED BY 31/3/05. THE ASSESSEE ALSO PLACED AN ORDER OF EREC TION AND COMMISSIONING OF THE THREE WEGS AND AGREED TO PAY A SUM OF RS. 33 .06 LACS AS ERECTION AND COMMISSIONING CHARGES. A COPY OF THE ERECTION AND COMMISSIONING ORDER DATED 16/2/2005 IS AT PAGE 97 TO 98 OF THE ASSESSEE S PAPER BOOK. CLAUSE (2) OF THIS ORDER CLEARLY MENTIONS THAT THE WEGS HA VE TO BE COMMISSIONED ON OR BEFORE 31/3/2005. THE ASSESSEE ENTERED INTO AN AGREEMENT TITLED MAINTENANCE, SERVICE AND AVAILABILITY AGREEMENT FOR THREE WEGS WITH NEG ITA NO.3352/MUM/2010(A.Y. 2005-06) 4 MICON INDIA PVT. LTD. THIS AGREEMENT IS FOR MAINTE NANCE OF THE WEGS FOR A PERIOD OF 60 MONTHS FROM THE DATE OF COMMISSIONING I.E. 31/3/2005. THE AGREEMENT DATED 24/3/2005 IS AT PAGE 99 TO 127 OF T HE ASSESSEES PAPER BOOK. 6. THE TAMIL NADU ELECTRICITY BOARD (TNEB), TO WHOM THE ELECTRICITY GENERATED BY THE THREE WEGS WERE TO BE SOLD, HAD GI VEN A REPORT CERTIFYING THE INSTALLATION OF THE WIND MILLS AS ON 31/3/2005. IT HAS ALSO BEEN CERTIFIED THAT THE HT SUPPLY FOR THE WEGS WAS EFFEC T FROM 31/3/2005. THE RELEVANT DOCUMENTS IN THIS REGARD ARE AT PAGE 128 T O 147 OF THE ASSESSEES PAPER BOOK. THE ASSESSEE ALSO ENTERED INTO AN AGRE EMENT DATED 29/3/2005 WITH TNEB FOR SALE OF ELECTRICITY GENERATED BY THE THREE WEGS. THIS AGREEMENT IS AT PAGE 148 TO 157 OF THE ASSESSEES P APER BOOK. 7. THE ASSESSEE HAD STARTED SUPPLY OF ELECTRICITY T O TNEB FROM 30/4/2005. THE INVOICE RAISED BY THE ASSESSEE FOR SALE OF ELECTRICITY TO TNEB ARE PLACED AT PAGE NO.158 TO 160 OF THE ASSESSEES PAPER BOOK. 8. IN THE LIGHT OF THE ABOVE DOCUMENTS, THE ASSESS EE SUBMITTED THAT THE ASSESSEE HAD SATISFIED ALL THE REQUIREMENTS FOR CLA IMING DEPRECIATION. THE ASSESSEE POINTED OUT THAT THE BASIC REQUIREMENT FOR GENERATION OF POWER WERE (1) INSTALLATION OF EQUIPMENT, (2) COMMISSION OF EQUIPMENT WHICH INVOLVES ROUTING OF POWER EVACUATOR LINES BILL SUBSTATION, U SE OF POWER TRANSMISSIONS LINES FOR TRANSFER OF POWER TO THE POINT OF UTILIZA TION. THE SAID PROCESS WAS COMPLETED BY THE COMPANY WHICH IS SUBSTANTIATED BY THE CERTIFICATE FROM TAMIL NADU ELECTRICITY BOARD CERTIFYING THAT THE SA ID WEGS WERE COMMISSIONED ON 31 ST MARCH, 2005 VIDE THEIR LETTER DATED 5 TH APRIL, 2005. THEY HAVE ALSO GIVEN ELECTRICITY GENERATION PARTICU LARS GIVING INITIAL READING AS ON 31/3/2005 VIDE THEIR LETTER DATED 5/5/2005. CONSIDERING THE ABOVE, THE ASSESSEE CLAIMED DEPRECIATION ON INSTALLED WEGS WHICH WERE ACQUIRED ITA NO.3352/MUM/2010(A.Y. 2005-06) 5 AND PUT TO USE BEFORE 31/3/2005. THE BASIC CONDIT ION REQUIRED TO BE FULFILLED FOR CLAIMING DEPRECIATION VIZ., (1) OWNER SHIP OF THE ASSET AND (2) USE OF THE ASSET IN THE BUSINESS, ACCORDING TO THE ASSE SSEE, WERE DULY SATISFIED. THE ASSESSEE ALSO SUBMITTED THAT THE EXPRESSION USE D FOR THE PURPOSE OF BUSINESS HAS BEEN EXPLAINED IN THE CASE OF CIT VS. BIRLA JUTE & INDUSTRIES LTD., 260 ITR 55(CAL). THE WORD BUSINESS INCLUDE S THE WHOLE PROCESS OF THE UNDERTAKING CARRIED ON BY THE ASSESSEE. IT BEGINS WITH THE INITIAL PROCESS TO ACHIEVE THE END PRODUCT AND ENDS WITH THE REALIZATI ON OF THE ULTIMATE PROFIT. A BUSINESS OF MANUFACTURING DOES NOT BEGIN OR END W ITH MANUFACTURING THE PRODUCT, IT BEGINS WITH ALL THE PROCESS WHICH ARE U NDERTAKEN BY THE ASSESSEE TO FACILITATE THE MANUFACTURING. THE PURPOSE OF MA NUFACTURING IS TO EARN A PROFIT OUT OF THE PRODUCTS MANUFACTURED. THE PROFI T CAN BE EARNED BY MARKETING OR TRADING THE PRODUCT. IT IS ONE WHOLE CYCLE OF A BUSINESS OR TRADE WHICH IS COMPREHENDED IN THIS SECTION. IF TH E PLANT RELATES TO THE PROCESS OF THE BUSINESS OR MANUFACTURING THEN IT IS USED FOR THE PURPOSE OF BUSINESS. THE ASSESSEE SUBMITTED THAT IT CAN BE S AID THAT THE ASSESSEE HAS USED THE WEG PLANT FOR THE PURPOSE OF BUSINESS AND IS ELIGIBLE FOR DEPRECIATION SINCE IT IS ACQUIRED AND COMMISSIONED THE WEGS BEFORE 31/3/2005. 9. THE ASSESSING OFFICER HOWEVER PLACED RELIANCE ON THE STATEMENT RECORDED AT THE TIME OF SURVEY AND HELD THAT THE AS SESSEE DID NOT PUT TO USE THE THREE WEGS DURING THE PREVIOUS YEAR AND, THEREF ORE, NOT ENTITLED TO CLAIM OF DEPRECIATION. 10. ON APPEAL BY THE ASSESSEE THE CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. ACCORDING TO HIM THE FACT THAT THE WIND MILLS WERE INSTALLED ON 31/3/2005 AND PUT TO USE ON THAT DATE WOULD NOT BE SUFFICIENT TO CLAIM DEPRECIATION. HE WAS OF THE VIEW THAT SI NCE THE SUPPLY OF ELECTRICITY WAS DONE BY THE ASSESSEE ONLY FROM 30/4/2005 IT CAN NOT BE ACCEPTED THAT ITA NO.3352/MUM/2010(A.Y. 2005-06) 6 THERE WAS AN ACTUAL USER OF THE WEGS. THE CIT(A) A LSO WAS OF THE VIEW THAT THE ELECTRICITY GENERATED CANNOT BE STORED AND HAS TO BE USED AND THIS HAPPENED ONLY FROM 30/4/2005. THE CIT(A) ACCORDING LY CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 11. AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESS EE HAS RAISED GROUND NO.1 BEFORE THE TRIBUNAL. 12. WE HAVE HEARD THE SUBMISSIONS OF THE LD. COUNSE L FOR THE ASSESSEE, WHO REITERATED THE STAND OF THE ASSESSEE AS WAS PUT FORTH BEFORE THE REVENUE AUTHORITIES. THE LD. D.R REITERATED THE STAND OF T HE REVENUE AS REFLECTED IN THE ORDERS OF THE REVENUE AUTHORITIES. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSION. IT IS CLEAR FROM THE DOCUMENTS FILED BY THE ASSESSEE THAT THE WIND MILLS WERE INSTALLED AND COMMISSIONED ON 31/3/2005. THE CERTIFICATE OF TNEB IN THIS REGARD CLEARLY ESTABLISHES THIS FACT. EVEN THE REVENUE DOES NOT D ISPUTE THIS FACT. THE QUESTION IS WHETHER INSTALLATION AND COMMISSIONING OF THE WEGS IS SUFFICIENT TO HOLD THAT THE WEGS WERE USED FOR THE PURPOSE OF BUSINESS DURING THE PREVIOUS YEAR SO AS TO ENABLE THE ASSESSEE TO CLAIM DEPRECIATION ON WEG. ON THIS ISSUE THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE ON CERTAIN JUDICIAL PRONOUNCEMENTS. IN THE CASE OF OMKAR TEST ILE MILLS PVT. LTD. VS. ITO (2008) 5 DTR (AHD) (TRIB) 187 THE ISSUE WITH REGARD TO ALLOWING DEPRECIATION ON WIND MILL HAD COME UP FOR CONSIDERATION. THE A SSESSEE HAD RELIED ON THE CERTIFICATE OF GUJARAT ENERGY DEVELOPMENT AGENCY CE RTIFYING COMMISSIONING OF WIND MILLS. A TEST RUN WAS ALSO UNDERTAKEN. TH E ASSESSMENT YEAR INVOLVED WAS 1995-96 AND THE TEST RUN WAS DONE ON 2 7/3/1995. THE QUESTION OF ALLOWING DEPRECIATION ON THE ABOVE FACT S WAS CONSIDERED BY THE TRIBUNAL. THE TRIBUNAL HELD THAT THE COMMISSIONING AND TEST RUN WOULD BE SUFFICIENT TO HOLD THAT THE WIND MILLS WAS USED FOR THE PURPOSE OF BUSINESS ITA NO.3352/MUM/2010(A.Y. 2005-06) 7 AND THE ASSESSEE WAS ENTITLED TO CLAIM DEPRECIATION . THE MUMBAI BENCH OF ITAT IN THE CASE OF GODAVRI CORPORATION PVT. LTD. V S. ITO ITA MP/309/M/08, A.Y 2002-03 ORDER DATED 15/4/2009 HAD OCCASION TO C ONSIDER A CLAIM FOR DEPRECIATION ON ACCOUNT OF USE OF WIND MILLS. THE TRIBUNAL FIRSTLY NOTICED THAT THERE WAS EVIDENCE TO SHOW THAT THERE WAS INST ALLATION AND COMMISSIONING OF WIND MILLS ON 30/3/2002. THEREAFT ER THE TRIBUNAL ALSO HELD AS FOLLOWS: 14. IN ACIT VS. ASHIMA SYNTEX LTD. (2201) 251 ITR 133 (GUJ), IT HAS BEEN HELD AT PAGE 133 HEAD NOTE: EVEN TRIAL PRODUCTION OF A MACHINERY WOULD FAL L WITHIN THE AMBIT OF USED FOR THE PURPOSE OF BUSINESS. F URTHER, AS THE STATUTE DOES NOT PRESCRIBE THE MINIMUM TIME LIMIT F OR USE OF THE MACHINERY, THE ASSESSEE CANNOT BE DENIED THE BE NEFIT OF DEPRECIATION ON THE GROUND THAT THE MACHINERY WAS U SED FOR A VERY SHORT DURATION FOR TRIAL RUN. 15. IN CIT VS. UNION CARBIDE (I) LTD. [2002] 254 ITR 488 (CAL) IT HAS BEEN HELD AT PAGE 489 [HEAD NOTE] THUS , THE TR IAL PRODUCTION WAS QUITE SUFFICIENT TO CLAIM BOTH DEPRECIATION AND INV ESTMENT ALLOWANCE. 16. IN OMKAR TEXTILE MILLS (P) LTD. VS. ITO [2008] 115 TTJ (AH. TRIBUNAL] 716 . IT HAS BEEN HELD THAT IN VIEW OF CE RTIFICATE OF GUJARAT ENERGY DEVELOPMENT AGENCY [GEDA], SALES TAX EXEMPTI ON CERTIFICATE, ELIGIBILITY CERTIFICATE, COMMISSIONING CERTIFICATE AND QUICK TEST REPORT ISSUED BY DEDA AND LETTER OF NEPC-MICON EVIDENCING THAT WIND TURBINE GENERATING SET WAS COMMISSIONED ON 27 TH MARCH, 1995 AND TEST RUN WAS ALSO UNDERTAKEN, THE ASSESSEE WAS ENTI TLED TO DEPRECIATION. 17. IN THE LIGHT OF THE ABOVE DOCUMENTARY EVIDENCE S AND THE RATIO OF ABOVE DECISIONS, WE ARE OF THE VIEW THAT THE ASSES SEE IS ENTITLED TO DEPRECIATION ON THE WINDMILL IN ACCORDANCE WITH LAW . THE AO IS DIRECTED TO ALLOW THE CLAIM OF THE ASSESSEE. ACCOR DINGLY THE GROUNDS TAKEN BY THE ASSESSEE ARE PARTLY ALLOWED. IN THE LIGHT OF THE ABOVE PRECEDENTS AND CONSIDERIN G THE FACTS OF THE PRESENT CASE, WE ARE OF THE VIEW THAT THE ASSESSEE WAS ENTI TLED TO DEPRECIATION. WE ARE ALSO OF THE VIEW THAT THE ADMISSION BY THE MANA GING DIRECTOR IN THE STATEMENT U/S.131 OF THE ACT, THAT THE ASSESSEE WAS NOT ENTITLED TO ITA NO.3352/MUM/2010(A.Y. 2005-06) 8 DEPRECIATION, CANNOT BE THE BASIS ON WHICH THE DISA LLOWANCE OF DEPRECIATION CAN BE SUSTAINED. THE LAW IS WELL SETTLED THAT ADM ISSIONS ARE NOT CONCLUSIVE AND THE PERSON WHO MADE THE ADMISSION IS ENTITLED T O SHOW THAT THE ADMISSION WAS MADE EITHER UNDER A MISTAKE OR MISAPP REHENSION. WE ARE OF THE VIEW THAT IN THE LIGHT OF THE DOCUMENTARY EVIDE NCE FILED BY THE ASSESSEE, THE ADMISSION BY THE ASSESSEE WAS ERRONEOUS. THE C LAIM FOR DEPRECIATION HAS TO BE ALLOWED IF THE CONDITIONS PRESCRIBED IN L AW ARE SATISFIED. WE THEREFORE HOLD THAT ADMISSION BY THE ASSESSEE CANNO T BE THE BASIS TO SUSTAIN THE DISALLOWANCE OF DEPRECIATION. IN THE CIRCUMSTA NCES, WE DIRECT THE ASSESSING OFFICER TO ALLOW THE CLAIM OF THE ASSESSE E. THUS GROUND NO.1 RAISED BY THE ASSESSEE IS ALLOWED. 14. GROUND NO.2 RAISED BY THE ASSESSEE READS AS FOL LOWS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE DISALLOW ANCE OF BAD DEBTS AMOUNTING TO RS. 1,50,000/- BY COMPLETELY IGNORING THE FACTS OF THE CASE AND ALSO THE SUBMISSIONS MADE. HE HAS ERRED I N DOING SO SINCE THE SAME ARE ALLOWABLE AS TRADING LOSSES U/S. 28. HE OUGHT NOT TO HAVE DONE SO. 15. THE ASSESSEE WROTE OFF A SUM OF RS. 1.50 LACS A S BAD DEBTS. THIS WAS AN INTER-CORPORATE DEPOSIT GIVEN TO ONE OF ITS SIST ER CONCERN M/S. ICA MEKKAT PVT. LTD. ACCORDING TO THE ASSESSING OFFICER THE LOSS ON ACCOUNT OF NON PAYMENT OF ICD WAS A CAPITAL LOSS AND CANNOT BE ALL OWED UNDER SECTION 36(1)(VII) OF THE ACT. ON APPEAL BY THE ASSESSEE THE CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER HOLDING THAT IT IS C APITAL LOSS AND NOT A LOSS INCURRED IN THE USUAL COURSE OF BUSINESS OF THE ASS ESSEE. 16. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE LOSS HAS TO BE ALLOWED UNDER SECTION 28 OF THE ACT. IT WAS SUBMITTED THAT THE AMOUNT IN QUESTION WAS TRADING ADVANCE GIVEN TO M/S. ICA M EKKAT PVT. LTD. WHO WAS ITA NO.3352/MUM/2010(A.Y. 2005-06) 9 THE MARKETING REPRESENTATIVE OF THE ASSESSEES PROD UCTS IN THE STATE OF KERALA. 17. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. C OUNSEL FOR THE ASSESSEE. IT IS SEEN THAT THE ASSESSEE HAS NOT LE T IN ANY EVIDENCE TO ESTABLISH ITS CASE THAT THE AMOUNT IN QUESTION WAS A TRADE ADVANCE. EVEN BEFORE THE CIT(A), NO EVIDENCE WAS LET PRODUCED. IN THESE CIRCUMSTANCES SINCE THE ASSESSEE HAS NOT ESTABLISHED THAT THE LOS S IN QUESTION HAD OCCURRED IN THE COURSE OF ITS BUSINESS, THE CLAIM F OR DEDUCTION UNDER SECTION 28 CANNOT BE ALLOWED. WE, THEREFORE, CONFIRM THE O RDER OF THE CIT(A) AND DISMISS GROUND NO.2 RAISED BY THE ASSESSEE. 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 15 TH DAY OF JUNE, 2011. SD/- SD/- (R.K.PANDA ) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED. 15 TH JUNE.2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3 . THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RH BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM. ITA NO.3352/MUM/2010(A.Y. 2005-06) 10 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 8/6/11 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 9/6/11 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER