S. Manikumar, J.

Challenge in this Tax Case Appeal, is to an order made by the Income Tax Appellate Tribunal in I.T.A. No. 1351/Mds/2015, dated 14.10.2015, by which, the Tribunal has dismissed the appeal preferred by the revenue, against the order of the Commissioner of Income-Tax(A) in I.T.A.No.188/2010-11/CIT(A)/TRY, dated 29.01.2014.

2. Short facts leading to the appeal are that the assessee is a private limited company, engaged in the business of running a Tourist Hotel. The assessee filed its return of income on 21.09.2008, admitting total income as Rs.70,10,580/-. Return was taken for scrutiny and assessment under Section 143(3) of the Income Tax Act (Hereinafter referred to as, "the Act") was completed on 30.12.2010, wherein the Assessing Officer disallowed the claim of depreciation of Rs.3,78,00,000/-, on the cost of Wind Mill of Rs.9,45,00,000/-, because the wind mill was not acquired during the relevant previous year. Reasons for arriving at the above said conclusion were that,

(a) The invoice for sale of the windmill was dated 31.03.2008 i.e. the last date of the relevant previous year.

(b) The assessee had paid only Rs.1,86,00,000/- out of the total cost of the windmill Rs.9,45,00,000/- as on 31.03.2008.

(c) The balance amount of Rs.7,79,00,000/- was paid during the month of May & June 2008 as follows:-

(d) The agreement with TNEB for sale of power was dated 29.03.2008 and the approval of the same was communicated by the S.E Tirunelveli/TNEB on 22.04.2008.

(e) The office of S.E. TNEB has not responded to the query raised by the Ld. Assessing Officer to clarify as to how sale agreement of power could be entered with the assessee by the TNEB on 29.03.2008 when the assessee has purchased the windmill vide invoice dated 31.03.2008.

(f) No specific evidence was produced either by the seller or by the buyer of the windmill that the property has passed hands before 31.03.2008.

(g) By the test of preponderance of probabilities, it could be construed that the windmill would have passed hands only during the Financial Year 2008-09 relevant to the assessment year 2009-10."

3. Being aggrieved by the same, the respondent-assessee filed I.T.A.No.188/2010-11/CIT(A)/TRY, before the Commissioner of Income-Tax (Appeals). Before the appellate authority, the respondent-assessee filed supporting evidence. Going through the evidence and after hearing both sides, vide order in I.T.A.No.188/2010-11/CIT(A)/TRY, dated 29.01.2014, the appellate authority has allowed the appeal of the respondent-assessee and directed the assessing officer to delete the addition made on account of disallowance of depreciation of Rs.3,78,00,000/-.

4. Not satisfied with the order, the Deputy Commissioner of Income Tax, Trichy, has filed I.T.A.No.1351/Mds/2014, before the Tribunal. After hearing the department's representative and the learned counsel for the respondent-assessee, the Tribunal confirmed the decision of the Commissioner of Income-Tax (Appeals), Trichy. Being aggrieved by the same, the instant Tax Case Appeal is filed, on the following substantial questions of law,

"(i) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee is entitled for depreciation on the wind mill generator purchased from M/s. Simran Wing Project (P) Ltd., even though no evidence was produced before the assessing officer to show that the asset was transferred to the assessee as on 31.03.2008?

(ii) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that there was no violation of Rule 46A, even though the CIT(A) had admitted the evidences that were not produced before the assessing officer?"

5. Supporting the substantial questions of law, Mr. J. Naray