Vimal Gandhi, President. - These two appeals by the revenue for the assessment years 1996-97 and 1997-98 are directed against the orders of the Commissioner of Income-tax (Appeals) :—

2. Grounds of appeal raised in assessment year 1996-97 are as under :

"1.On the facts and in the circumstances of the case, the Ld. CIT(A) erred in holding that the assessee is entitled to 100% depreciation on tankers against 20% allowed by the Assessing Officer thereby allowing depreciation of Rs. 3.64 crores.

2.The Ld. CIT(A) erred in allowing dep. of Rs. 11.17 crores on wind electricity generators."

Similar grounds have been raised in assessment year 1997-98.

3. The facts of the case briefly stated are that the assessee company M/s. Goyal MG Gases Ltd. (GGL) started business of manufacturing, bottling and marketing of industrial gases like Oxygen, Nitrogen, Argon, Hydrogen etc. It entered into agreement on 1st February, 1996 with M/s. Wind Powers Ltd. (WPL) to purchase three wind farms namely M/s. Cauveri Farm, Yamuna Farm and Ganga Farm for a total consideration of Rs. 2,250 lakhs.

4. The main disputes that arise for consideration in these two appeals are - first relating to depreciation on tankers and second, depreciation on wind electric generators.

5. As far as first ground of appeal relating to 100% depreciation on tankers used for transportation of gases is concerned, the matter is fully covered in favour of the assessee as per decision of the Tribunal in the case of the assessee for the assessment years 1992-93 to 1994-95 and 1995-96. In above years the Assessing Officer has held that these tankers were to be treated as Cylinders for purposes of depreciation. However, on appeal, the learned CIT(A) allowed 100% depreciation and above orders were confirmed by the Income-tax Appellate Tribunal in further appeal vide their order dated 11-6-1999 in ITA Nos. 4199 & 5017 (Delhi) 96 and 4509 (Delhi) 97 and it was directed that 100% depreciation be allowed. The matter is thus fully covered in favour of the assessee.

6. The learned DR tried to distinguish above order on the ground that cylinders were used for transportation of gases. However, there is nothing on record to support the contention of the revenue. The Tribunal has already recorded that the assessee is entitled to 100% depreciation on tankers which were employed for transportation of gases. In the light of above decision of the Tribunal, we reject ground No. 1 in both the assessment years.

7. The second common ground relates to the claim of depreciation on Wind Farms. As already noted, the assessee vide agreement dated 1st February, 1996 had agreed to purchase three Wind Farms from Wind Powers Ltd. These farms were required to be commissioned before 31st March, 1996. 100% depreciation is allowed on wind electric generators used in Wind Farms but as generators were put to use for less than 180 days in this case, the assessee claimed depreciation at 50% of Rs. 22,34,80,640 i.e. Rs. 11,17,40,320.

8. The Assessing Officer while completing the assessment, disallowed depreciation as No Objection Certificates for installation of Wind Mills were signed as late as 30th March, 1996 and therefore, according to the Assessing Officer, Wind Mills could not have been put to use before 31st March, 1996 as claimed by the assessee. The claim of depreciation was accordingly disallowed.

9. On appeal, the CIT(A) found that the generators had been commissioned during the relevant year and accepted the claim of depreciation made by the assessee. The CIT(A) also rejected the further contention raised by the Assessing Officer during the course of appellate proceedings that the assessee was not the owner of the wind farms. The Department, aggrieved by the order of the CIT(A), is in appeal before the Tribunal.

10. It was submitted by the learned DR that the assessee never became the owner of the wind electricity generators so as to become entitled to claim depreciation thereon. He further contended that the wind elec