Arindam Sinha, J. - (1.) THE appellant assessee has preferred this appeal against a judgment dated 31st December, 2004 pertaining to the Assessment Year 1992 -93 by which the learned Appellate Tribunal dismissed both grounds of appeal of the assessee in upholding the order of the Assessing Officer as confirmed by the CIT(A). The appeal before us was admitted on the following questions: - - "i) Whether on the facts and in the circumstances of the case in spite of the relevant facts and evidences being on record the Hon'ble Tribunal erred in law in coming to a finding that the machinery was not used for the purpose of business and, therefore, the claim of depreciation under Section 32 of the Act for a sum of Rs. 32,77,267.00 could not be allowed, even though the cession of work/suspension of work in the factory premises of the petitioner was not on account of the petitioner, and during that time also the machinery was kept ready for use and that the factory having resumed operation, immediately after a certain period of time and which is still running up to the present date and the further fact is that the word user being given a wider meaning to include not only active user but passive user, the confirmation of the orders of the Assessing Officer as well as the Commissioner of Income Tax (Appeals) by the Tribunal being the last fact finding authority by ignoring relevant facts and on the contrary taking irrelevant facts into consideration is perverse? ii) Whether on the facts and in the circumstances of the case the Hon'ble Tribunal erred in law in not granting the petitioner's claim of Rs. 15.69 lacs incurred for filling up the pond, leveling of the low land as a revenue expenditure where no enduring benefit had accrued to the petitioner and when there was judicial view for the finding that it would be allowed as a revenue expenditure, and the mere confirmation of the order of the lower authority by the Tribunal is perverse -
(2.) ON the first question regarding depreciation the facts are that the assessee by a notice dated 18th March, 1989 had suspended the work of the mills with effect from that day. The suspension of work continued till it was lifted in a phased manner on and from 26th December, 1994. Mr. Sen, learned Advocate appearing on behalf of the assessee/appellant relied on two decisions of this High Court in the cases of Hindustan Gas & Industries Ltd. v. CIT reported in (1995) 79 Taxman -Tax Reports 151 and CIT v. M/s. Norplex Oak India in ITA 17 of 2001 disposed of by judgment dated 31st March, 2011. He submitted that in Hindustan Gas & Industries Ltd. this court in considering the claim of an assessee for depreciation on diesel generating sets let out on lease which lease had expired but the generating sets lying in the lessee's factory under lock -out could not be used, had held the claim was allowable. Relying on M/s. Norplex Ork India, Mr. Sen submitted the word 'used' in section 32(1) of the Act should be given a reasonable meaning.
(3.) MR . Sinha, learned Advocate appearing on behalf of the respondent/Revenue reiterated the case of the Revenue made out before the authorities below.;