DCIT, New Delhi V. M/s. Lakshmji Sugar Mills Co. Ltd, New Delhi

ITA 4713/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4304 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 24-03-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 14-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Assessee Lawyers: SM MATHUR
• Keywords: Depreciation
• Section: 143(3); 32; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.4713,4714 & 4715 /DEL/2009 ASSESSMENT YEAR : 2002-03, 2005-06 & 2006-07 DCIT, M/S LAKSHMJI SUGAR MILLS LTD., CIRCLE-4 (1), 1506-HEMKUNT TOWER, NEW DELHI. V. 98-NEHRU PLACE, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. ANUSHA KHURANA, SR. DR. RESPONDENT BY : SHRI S.M. MATHUR, C.A. ORDER PER BENCH: ALL THESE THREE APPEALS ARE FILED BY THE REVENUE WHIC H ARE DIRECTED AGAINST SEPARATE ORDERS OF LD CIT(A)-VII, NEW DELHI DATED 8.10.2009 FOR AT 2002-03, DATED 9.10.2009 FOR ASSESSMEN T YEAR 2005- 06 AND AGAIN DATED 9.10.2009 FOR ASSESSMENT YEAR 2006- 07. 2. SINCE ONLY ONE COMMON ISSUE IS INVOLVED IN ALL THESE THREE APPEALS, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. THE GROUNDS OF APPEAL IN ALL THE YEARS ARE IDENTIC AL WITH DIFFERENCE IN AMOUNTS AND HENCE WE REPRODUCE THE GRO UNDS RAISED BY THE REVENUE IN ASSESSMENT YEAR 2002-03 I.E. IN I.T.A. NO.4713/DEL/2009: 1. THE ORDER OF LD CIT(A) IS ERRONEOUS AND CONTRARY TO T HE FACTS AND LAW. I.T.A. NO.4713,4714 & 4715 / DEL/09 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND I N LAW, LD CIT(A) HAS ERRED IN DELETING THE ADDITION OF `.1,29, 13,240/- MADE BY THE ASSESSING OFFICER DISALLOWING DEPRECIATION CLAIME D ON PLANT & MACHINERY. 2.1. THE LD CIT(A) HAS IGNORED THE FACT THAT THE FAC TORY PREMISE OF THE ASSESSEE REMAINED CLOSED THROUGH OUT THE YEAR. 4. IN ASSESSMENT YEAR 2005-06, THE AMOUNT IN DISPUTE IS `.54,47,774/- AND IN ASSESSMENT YEAR 2006-07, THE AMOUN T IN DISPUTE IS `.40,85,830/-. 5. BRIEF FACTS OF THE CASE ARE THAT IT IS NOTED BY THE ASSESSING OFFICER IN THE RE-ASSESSMENT ORDER PASSED BY HIM ON 12.11.2007 FO R ASSESSMENT YEAR ASSESSMENT YEAR 2002-03 THAT RETURN OF INC OME WAS FILED BY THE ASSESSEE DECLARING A LOSS OF `.202203074/-. IT IS ALSO NOTED THAT THE REGULAR ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 30.6.2004 ON LOSS OF `.1,31,46,774/- PRECLUDING BROUG HT FORWARD LOSSES FOR EARLIER YEARS FOR WANT OF CORRECT AND ADMISSIBLE F IGURE OF SUCH LOSSES. THE ASSESSING OFFICER INITIATED RE-ASSESSMENT PROCEED INGS U/S 147 AND ISSUED NOTICE DATED 29.3.2007 U/S 148 OF THE A CT. IN THE COURSE OF RE-ASSESSMENT PROCEEDING, A QUESTION WAS RAISED B Y THE ASSESSING OFFICER AND HE ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE DEPRECIATION OF `.132,69,049/- SHOULD NOT BE DISALLOW ED ON THE GROUND THAT PLANT & MACHINERY WERE NOT PUT TO USE AND THAT THERE WAS NO MANUFACTURING ACTIVITY DURING THE YEAR UNDER CONSIDE RATION. THE ASSESSEE HAS FURNISHED SOME EXPLANATION BUT THE ASSESSING OFFI CER WAS NOT SATISFIED AND HE COMPLETED RE-ASSESSMENT PROCEEDIN GS BY MAKING DISALLOWANCE OF DEPRECIATION CLAIMED BY THE A SSESSEE ON PLANT & MACHINERY TO THE EXTENT OF `.1,29,13,240/-. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD CIT (A) WHO HAS DELETED THIS DISALLOWANCE OF DEPRECIATION BY FOLLOWIN G THE JUDGMENT OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF CAP ITAL BUS SERVICE PVT. LTD. V. CIT REPORTED IN 123 ITR 404 (DEL.), CI T V. REFRIGERATION AND I.T.A. NO.4713,4714 & 4715 / DEL/09 3 ALLIED INDUSTRIES LTD. 247 ITR 12 (DEL) AND IN THE CA SE OF CIT V. YAMHA MOTORS PVT. LTD. AS REPORTED IN 28 DTR 237 (DEL.). A GAINST THIS ORDER OF LD CIT(A), THE REVENUE IS IN APPEAL BEFORE US FOR ASSE SSMENT YEAR 2002-03. 6. SIMILARLY IN ASSESSMENT YEAR 2005-06 ALSO, THE ASSESSING OFFICER HAS MADE DISALLOWANCE OF DEPRECIATION ON PLANT & MACH INERY TO THE EXTENT OF `.54,47,774/- ON THIS BASIS THAT THE PLANT & MACHINERY EXCLUSIVELY MEANT FOR MANUFACTURING ACTIVITY WERE NO T USED DURING THIS YEAR AND HENCE DEPRECIATION IS NOT ALLOWABLE. SIMILA RLY, IN ASSESSMENT YEAR 2006-07, THE ASSESSING OFFICER MADE DISALLOWANCE OF DEPRECIATION ONLY ON PLANT & MACHINERY TO THE EXTENT OF `.40,85, 830/-. IN BOTH THESE YEARS ALSO, THE ASSESSEE CARRIED THE MATTER IN APPEAL BE FORE LD CIT(A) WHO HAS DELETED DISALLOWANCE OF DEPRECIATION BY FOLLO WING HIS OWN ORDER FOR ASSESSMENT YEAR 2002-03 IN ASSESSEES OWN CASE. IN THESE TWO YEARS ALSO, THE REVENUE IS IN APPEAL BEFORE US. 7. LD DR OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER I N ALL THE THREE YEARS. 8. IT WAS HIS SUBMISSION THAT SINCE THERE WAS NO USER DURIN G THESE YEARS, DEPRECIATION IS NOT ALLOWABLE. 9. AS AGAINST THIS, LD AR OF THE ASSESSEE SUPPORTED THE OR DER OF LD CIT(A). RELIANCE WAS PLACED BY HIM ON THE FOLLOWING JUDGMENTS OF HON'BLE DELHI HIGH COURT:- A) CAPITAL BUS SERVICE PVT. LTD. V. CIT 123 ITR 404 (DE L.). B) CIT V. REFRIGERATION AND ALLIED INDUSTRIES LTD. 247 ITR 12 (DEL.). C) CIT V. YAMHA MOTORS INDIA PVT. LTD. 328 ITR 297 (DEL .). 10. IT WAS ALSO SUBMITTED THAT THERE IS NO DISPUTE THAT THE MILL REMAINS CLOSED BECAUSE OF THE FACT THAT THE COMPANY HA D BECOMES SICK AND A SCHEME OF REHABILITATION WAS SANCTIONED BY BIFR AND THE SCHEME OF REHABILITATION WAS UNDER IMPLEMENTATION. I T IS ALSO SUBMITTED THAT THE MILL REMAINED CLOSED DUE TO NON AV AILABILITY OF SUGAR CANE AND BECAUSE OF THIS REASON ALSO THAT DUE TO N ON PAYMENT OF I.T.A. NO.4713,4714 & 4715 / DEL/09 4 WAGES TO THE WORKERS, THEY HAD STOPPED WORKING IN THE MILL. IT IS ALSO SUBMITTED THAT DUE TO NON AVAILABILITY OF FUNDS, ELEC TRICITY WAS DISCONNECTED AND WORKING CAPITAL WAS NOT AVAILABLE WI TH THE COMPANY. IT IS ALSO SUBMITTED THAT THE EFFORTS WERE MADE BY THE COMPANY FOR ITS REVIVAL AND RE-STARTING OF THE MILL AND IT WAS SUBSEQUE NTLY REOPENED ON 19.12.2006 AND SINCE THAT DATE, THE MILL IS WORKING A ND THE SAME PLANT & MACHINERY ARE BEING USED IN MANUFACTURING ACTIVITY OF SUGAR. IT IS ALSO SUBMITTED THAT THE MILL WAS CLOSED ON 29.2.2000 AN D IN THE MEETING HELD ON 27.2.2002, BIFR RECOMMENDED WINDING UP OF THE COMPANY AND REFERRED THE MATTER TO THE HON'BLE DELH I HIGH COURT. IN ITS JUDGMENT DATED 31.3.2006, HON'BLE DELHI HIGH COU RT HAD ADJOURNED THE WINDING UP PETITION AND SANCTION REVIVAL SCHEME O F THE ASSESSEE COMPANY. IT IS SUBMITTED THAT THEREAFTER, THE MILL WA S RE-STARTED FROM 19.12.2006. IT IS ALSO SUBMITTED THAT ON PAGE NO.5 OF THE PAPER BOOK FOR ASSESSMENT YEAR 2002-03, THERE IS COPY OF DAILY REPO RT FOR 26.12.2006 AS PER WHICH, 542 QTLS. OF SUGAR WAS PRODUCE D ON THAT DATE AND 1315 QTLS OF SUGAR WAS PRODUCED TILL THAT DATE IN FINANCIAL YEAR 2006-07. IT IS ALSO SUBMITTED THAT THE TIME LAG BETWE EN THE ACTUAL RE- STARTING OF THE MILL AFTER THE ORDER OF HON'BLE DELH I HIGH COURT HAS TO BE CONSIDERED IN THE LIGHT OF THIS ASPECT THAT SUGAR MILL IS A SEASONAL INDUSTRY AND IT DOES NOT RUN THROUGH OUT THE YEAR. I T IS SUBMITTED THAT IN THE INTERVENING PERIOD, THE PLANT WAS READY FOR U SE THROUGHOUT AND THE SAME COULD NOT BE USED FOR THE REASONS BEYOND THE C ONTROL OF THE ASSESSEE COMPANY AND HENCE, THERE WAS PASSIVE USER OF THE PLANT AND THEREFORE, AS PER VARIOUS JUDGMENTS OF HON'BLE DELHI H IGH COURT CITED ABOVE, CLAIM OF THE ASSESSEE REGARDING DEPRECIATION SHOU LD BE ALLOWED. 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE T HROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THERE IS NO DISPUTE REGARDING THESE FACTS THAT THE MILL WAS STOPPED WORKING ON 29.2. 2000 AND SINCE THEN, IT WAS NOT FUNCTIONAL TILL IT WAS AGAIN STARTED ON 19.12.2006. IN ITS MEETING HELD ON 27.2.2002, BIFR RECOMMENDED WINDING UP OF THE I.T.A. NO.4713,4714 & 4715 / DEL/09 5 COMPANY AND REFERRED THE MATTER TO THE HON'BLE DELH I HIGH COURT. THESE FACTS ARE NOTED BY THE HON'BLE DELHI HIGH COURT IN ITS JUDGMENT DATED 31.3.2006. AS PER THIS JUDGMENT, HON'BLE DELHI HIGH COURT HAS HELD THAT NORMALLY IN THE CIRCUMSTANCES AS IN THIS CA SE, THE REHABILITATION SCHEME OF THE COMPANY COULD HAVE BEEN DISMISSED BUT IN VIEW OF SOME OTHER ASPECTS, THEIR LORDSHIPS HELD THAT AN ATTEMPT CAN BE MADE TO REVIVE THE COMPANY UNDER THE SCHEME A ND THEY HAVE SANCTIONED THE REVIVAL SCHEME WITH CERTAIN CONDITIONS . AFTER THIS JUDGMENT OF HON'BLE DELHI COURT ON 31.3.2006, THE M ILL HAS STATED TO HAVE BEEN RE-STARTED WORKING FROM 19.12.2006 AND IN THE VERY FIRST WEEK TILL 26.12.2006, THE COMPANY HAS PRODUCED 1315 QTLS. OF SUGAR. IN THE LIGHT OF THESE FACTS, WE FIND THAT THE MILL WA S NOT FUNCTIONAL IN THE INTERVENING PERIOD FOR THE REASONS BEYOND THE CONTROL OF THE ASSESSEE COMPANY BUT IMMEDIATELY AFTER THE REVIVAL SCHEME WAS SANCTIONED BY HON'BLE DELHI HIGH COURT, THE MILL STARTED WORKING I N THE BEGINNING OF NEXT SUGAR SEASON. WE ALSO FIND THAT THE COMPUTATION O F INCOME/LOSS FOR ASSESSMENT YEAR 2002-03 SUBMITTED BY THE ASSESSEE ALONG WITH RETURN OF INCOME IS AVAILABLE ON PAGE NO.2 OF THE PA PER BOOK IN WHICH THE ASSESSEE COMPANY HAS WORKED OUT NET LOSS OF `.1,31,46, 774/- AFTER CLAIMING DEPRECIATION AS PER IT RULES OF `.1,32,69,04 9/-. THE PROFIT & LOSS ACCOUNT OF THE ASSESSEE COMPANY FOR THE YEAR ENDED 3 1.3.2002 IS AVAILABLE ON PAGE NO.20 OF THE PAPER BOOK IN WHICH THE ASSESSEE HAS CLAIMED DEDUCTION ON ACCOUNT OF ADMINISTRATIVE AND SE LLING EXPENSES OF `.1,87,864/-, EMPLOYEES EMOLUMENTS `.1,78,680/-, REPAIRS AND MAINTENANCE `.21,774/- AND MISC. EXPENSES OF `.32,967/ -. NEITHER IN THE ORIGINAL ASSESSMENT NOR IN THE RE-ASSESSMENT ORDER PASSE D BY THE ASSESSING OFFICER ON 12.11.2007, THERE IS ANY DISALLOWANC E OUT OF THESE EXPENSES CLAIMED BY THE ASSESSEE AS NOTED ABOVE. OUT OF DEPRECIATION CLAIM OF THE ASSESSEE ALSO OF `.1,32,69,049 /- AS PER THE COMPUTATION OF INCOME AVAILABLE ON PAGE NO.2 OF THE PAPER BOOK, THE ASSESSING OFFICER HAS DISALLOWED DEPRECIATION ON PLANT & MACHINERY TO I.T.A. NO.4713,4714 & 4715 / DEL/09 6 THE EXTENT OF `.1,29,13,240/- AND IT MEANS THAT THE ASSESSING OFFICER HAS ALLOWED DEPRECIATION ON REMAINING ASSETS OF THE ASSESSE E COMPANY. REMAINING ASSETS OF THE ASSESSEE COMPANY INCLUDE RESIDENTIAL BUILDING, FACTORY BUILDING, FURNITURE AN D FIXTURE, TUBE WELL, VEHICLES, FIRE FIGHTING EQUIPMENTS, COMPUTERS ETC. IT MEANS THAT EXCEPT DEPRECIATION ON PLANT AND MACHINERY, THE ASSESSI NG OFFICER HIMSELF HAS ALLOWED DEDUCTION ON ACCOUNT OF ALL OTHER EXPENSES AND DEPRECIATION ON ALL OTHER ASSETS. IN THE LIGHT OF THE SE FACTS OF THE PRESENT CASE, WE NOW EXAMINE THE APPLICABILITY OF THE JUDGMENT OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT V. REFRIGERATION & ALLIED INDUSTRIES LTD. (SUPRA). 12. THE FACTS OF THAT CASE ARE THAT THE ASSESSEE OWNED A COLD STORAGE. DURING THE ASSESSMENT YEAR 1971-72, THE MACHINE RY INSTALLED WAS NOT PUT TO USE BECAUSE OF POOR POTATOES CROP DURING THE SEASON. THE ASSESSING OFFICER HAS THEREFORE DISALLOWED THE CLAIM FOR DEPRECIATION. ON APPEAL, THE AAC NOTED THAT THE WOR D USER EMBRACES PASSIVE AND ACTIVE USER AND DEPRECIATION WAS ALLOWABLE EVEN THOUGH THE MACHINERY HAD NOT BEEN ACTUALLY USED DURING THE YEAR, AS THE PLANT WAS KEPT IN OPERATIONAL CONDITION. IN THAT CASE, THE TRIBUNAL UPHELD THE CONCLUSION OF THE AAC AND NOTED THAT SINCE THE ASSESSING OFFICER HIMSELF HAS ALLOWED EXPENSES CLAIMED ON ACCOUNT OF BUSIN ESS OF COLD STORAGE, THERE WAS NO JUSTIFICATION TO DISALLOW THE CLA IM OF DEPRECIATION. AGAINST THIS TRIBUNAL ORDER, THE REVENUE WAS IN APPEA L BEFORE HON'BLE DELHI HIGH COURT. THE RELEVANT PARA OF THIS JUDGMEN T OF HON'BLE DELHI HIGH COURT I.E. PARA NO4. IS REPRODUCED BELOW:- 4. SECTION 32 DEALS WITH DEPRECIATION. THERE IS NO RE QUIREMENT THAT THE ASSETS SHOULD BE USED FOR THE WHOLE OF THE ASSESSME NT YEAR IN QUESTION. THE TERM USED IN SECTION 32(1) IS OWNED BY ASSESSE E, BUT THAT DOES NOT BRING IN A REQUIREMENT THAT THE ASSESSEE SHOULD HAV E REMAINED THE OWNER OF THE ASSET IN QUESTION FOR THE ENTIRE PREVIOUS YE AR IN QUESTION. THE OBJECT I.T.A. NO.4713,4714 & 4715 / DEL/09 7 OF THE LEGISLATURE IN GRANTING DEPRECIATION ALLOWAN CE UNDER SECTION 32, IS TO GIVE DUE ALLOWANCE TO THE ASSESSEE FOR WEAR AND TEAR SUFFERED BY THE ASSET USED BY HIM IN HIS BUSINESS SO THAT THE NET I NCOME (TOTAL INCOME) IS DULY ARRIVED AT. THERE IS NO FACTUAL DISPUTE THAT T HE ASSETS IN QUESTION WERE OWNED BY THE ASSESSEE. IN MACHINERY MFRS. CORPN. LTD. V. CIT [1957] 31 ITR 203 (BOM.), IT WAS OBSERVED THAT THE EXPRESSION USED IN SECTION 10(2)( VI ) OF THE INDIAN INCOME-TAX ACT, 1922 CORRESPONDING TO SECTION 32 OF THE ACT HAS TO BE GIVEN A WIDER MEANING. THE EXPRES SION INCLUDES PASSIVE AS WELL AS ACTIVE USER. IN CIT V. DALMIA CEMENT LTD. [1945] 13 ITR 415 (PAT.) AND CIT V. VISWANATH BHASKAR SATHE [1937] 5 ITR 621 (BOM.), IT WAS OBSERVED THAT DEPRECIATION MIGHT BE ALLOWED IN CERTAIN CASES EVEN THOUGH THE MACHINERY WAS NOT IN USE OR WAS KEPT IDL E. THE QUESTION WHETHER THE WORD USED WOULD INCLUDE BOTH PASSIVE AS WELL AS ACTIVE USER WAS LEFT OPEN BY THE APEX COURT IN LIQUIDATORS OF PURSA LTD. V. CIT [1954] 25 ITR 265 . THE WORDS USED FOR THE PURPOSES OF THE BUSINESS ARE CAPABLE OF A LARGER AND A NARROWER INTERPRETATION. IF THE EXPRESSION USED IS CONSTRUED STRICTLY, IT CAN BE TAKEN AS CONNOTING OR REQUIRING THE ACTIVE EMPLOYMENT OR THE ACTUAL WORKING OF A MACHINERY, PL ANT OR BUILDING IN THE BUSINESS. ON THE OTHER HAND, THE WIDER MEANING WILL INCLUDE NOT ONLY CASES WHERE THE MACHINERY, PLANT, ETC., ARE ACTIVEL Y EMPLOYED BUT ALSO CASES WHERE THERE IS WHAT MAY BE DESCRIBED AS A PAS SIVE USER OF THE SAME IN THE BUSINESS. AN ASSET CAN BE SAID TO BE IN USE WHEN IT IS KEPT READY FOR USE. 13. AFTER MAKING VARIOUS OBSERVATION IN PARA NO.4 AS R EPRODUCED ABOVE, HON'BLE DELHI HIGH COURT HAS CONSIDERED AND R EFERRED TO THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF LIQUIDATORS OF PURSA LTD., V. CIT AS REPORTED IN 25 ITR 265 AND OBSER VED THAT THE QUESTION WHETHER THE WORD USED WOULD INCLUDE BOTH P ASSIVE AS WELL AS ACTIVE USE WAS LEFT OPEN BY THE HON'BLE APEX COURT IN THIS CASE AND THEREAFTER, HON'BLE DELHI HIGH COURT HAS CONFIRMED T HE TRIBUNAL ORDER BY OBSERVING THAT IN VIEW OF THE CONCLUSIONS ARRIVED A T BY THE AAC AND I.T.A. NO.4713,4714 & 4715 / DEL/09 8 THE TRIBUNAL ABOUT THE OBLIGATION TO KEEP THE MACHI NERY IN GOOD WORKING CONDITION SO THAT IT CAN BE USED AT ANY MOME NT WITH ADDITIONAL FACTS AS NOTED BY THEM THAT ALL EXPENSES RELATING TO CO LD STORAGE BUSINESS WERE ALLOWED, THE TRIBUNAL DECISION IS IRREVERS IBLE. IN THE PRESENT CASE ALSO, THE ASSESSING OFFICER HAD FOLLOWED THE SAME JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF LIQUIDATORS PURSA LTD., (SUPRA) IN ADDITION TO JUDGMENT OF HON'BL E CALCUTTA HIGH COURT. REGARDING THIS JUDGMENT OF HON'BLE APEX COUR T, WE FIND THAT THE SAME WAS DULY CONSIDERED BY HON'BLE DELHI HIGH COU RT IN THE CASE OF CIT V. REFRIGERATION & ALLIED INDUSTRIES LTD. (SUP RA) AND IT WAS OBSERVED THAT IN THAT CASE, HON'BLE APEX COURT HAS LEF T OPEN THE QUESTION AS TO WHETHER THE WORD USED WOULD INCLUDE B OTH PASSIVE AS WELL AS ACTIVE USER AND THEREAFTER, HON'BLE DELHI HIG H COURT HAS HELD THAT IF THE ASSETS WERE IN PASSIVE USER FOR BUSINESS, IT CAN BE SAID THAT THE ASSET WAS IN USE WHEN IT IS KEPT READY FOR USE AND DE PRECIATION IS ALLOWABLE. SINCE THE JUDGMENT OF HON'BLE JURISDICTIO NAL HIGH COURT I.E. DELHI HIGH COURT IS IN FAVOUR OF THE ASSESSEE, WE ARE B OUND BY THAT HENCE, WE CANNOT FOLLOW THE JUDGMENT OF HON'BLE CAL CUTTA HIGH COURT. NO OTHER ADVERSE DECISION OF HON'BLE DELHI HIGH COURT OR OF HON'BLE APEX COURT WAS BROUGHT TO OUR NOTICE BY LD DR OF THE REVENUE. IN THE PRESENT CASE, THE ASSETS WERE READY FOR USE AND HENCE PASSI VE USER IS THERE. IN THE PRESENT CASE, THE EQUIPMENTS WERE USED I N EARLIER YEARS AND LATER YEARS AND IN THE PRESENT YEARS ALSO, IT WERE READY FOR USE. MOREOVER, THE ASSESSING OFFICER HAS ALLOWED ALL THE EXPE NSES INCURRED BY THE ASSESSEE FOR ITS SUGAR MILL WHICH ALSO INCLUDE DEPR ECIATION ON ALL OTHER ASSETS EXCEPT PLANT & MACHINERY MEANT FOR EXCLUSI VE MANUFACTURING ACTIVITY IN ALL THREE YEARS. HENCE, WE ARE OF THE CONSIDERED OPINION THAT THIS JUDGMENT OF HON'BLE DELH I HIGH COURT IS SQUARELY APPLICABLE IN THE FACTS OF THE PRESENT CASE AN D SINCE IN THIS JUDGMENT, THE JUDGMENT OF HON'BLE APEX COURT WAS DUL Y CONSIDERED ON WHICH RELIANCE HAS BEEN PLACED BY THE ASSESSING OFFICER , WE DECLINE TO I.T.A. NO.4713,4714 & 4715 / DEL/09 9 INTERFERE IN THE ORDER OF LD CIT(A) IN ALL THE THRE E YEARS BY RESPECTFULLY FOLLOWING THIS JUDGMENT OF HON'BLE DELHI HIGH COURT. 14. IN THE RESULT, ALL THE THREE APPEALS OF THE REVEN UE ARE DISMISSED. 15. ORDER PRONOUNCED IN THE OPEN COURT ON THE DAY O F 13 TH APRIL, 2011. SD/- SD/- (I.P. BANSAL) (A.K. GAR ODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 13. .4.2011. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING DATE OF DICTATION DATE OF ORDER SIGNED BY THE HON'BLE MEMBER. DATE OF ORDER SENT TO THE CONCERNED BENCH