Assessee is entitled to depreciation on Wind Electric Generators from the date on which it was installed and commissioned

Hindustan Platinum Pvt. Ltd. Vs ACIT (ITAT Mumbai)- 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 dispute 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 Textile 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 assessee had relied on the certificate of Gujarat Energy Development Agency certifying commissioning of Wind Mills. A test run was also undertaken. The assessment year involved was 1995-96 and the test run was done on 27/3/1995. The question of allowing depreciation on the above facts 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 and the assessee was entitled to claim depreciation. The Mumbai Bench of ITAT in the case of Godavri Corporation Pvt. Ltd. vs. ITO ITA Mp/309/M/08, A.Y 2002-03 order dated 15/4/2009 had occasion to consider a claim for depreciation on account of use of Wind Mills. The Tribunal firstly noticed that there was evidence to show that there was installation and commissioning of Wind Mills on 30/3/2002. In the light of the above precedents and considering the facts of the present case, we are of the view that the assessee was entitled to depreciation.

Statement given u/s 131 cannot be the only basis for disallowing the claim of depreciation when it is shown with documentary evidence that the admission made in the statement recorded was under a mistake or misapprehension

Assessee is not entitled to claim loss u/s 28 on account bad debt of the advance given as inter corporate deposit without establishing the fact that it was a trade advance.

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