High Court Of Allahabad
K.M. Sugar Mills Ltd. vs. CIT
Sections 32(1)
Asst. Year 1986-87
M. Katju & Prakash Krishna, JJ.
IT Appeal No. 286 of 1999
17th April, 2003
Counsel Appeared
S.K. Garg, Amit Shukla & R.S. Agarwal, for the Appellant
JUDGMENT
M. Katju, J. :
This is an income-tax appeal under s. 260A of the IT Act, 1961. Heard learned counsel for the parties. The petitioner has challenged the impugned order of the Tribunal, Allahabad Bench, Allahabad, dt. 29th April, 1999, copy of which is annexure 4 to this appeal. The relevant assessment year is 1986-87.
The assessee-company had purchased gas cylinders worth Rs. 39,44,650 and had claimed depreciation on such assets, at the rate of 100 per cent, which was the rate applicable to such kind of assets. In relation to the said claim, the assessee placed on record, besides other things, the following facts : (a) the cylinders in question had been purchased for use in the manufacture of oxygen gas, a step that had been taken by the assessee-company in the direction of diversification of its existing business activities. (b) As the plant for manufacturing of oxygen gas could not come up, the cylinders (so purchased by the assessee at a cost of Rs. 39,44,650) were let out to two parties on 29/30th Sept., 1985, and rental as had been earned from the said two parties had duly been credited to the P&L a/c.
The AO while completing the regular assessment in terms of the order dt. 30th March, 1988, took the view that the said cylinders could not have been and had not been put to use during the accounting period ending on 30th Sept., 1985, and on that reasoning rejected the claim for depreciation. The CIT(A) in first appeal reversed the order of the AO on this issue and held as follows : “(a) the assessee/respondent had purchased the cylinders and had thereby become the owner of the cylinders worth Rs. 39,44,650; (b) the cylinders so purchased by it had duly been dispatched to the two parties on 29th Sept., 1985, i.e., before the close of the relevant accounting year; (c) letting out of the cylinder in this case was a part of the overall business of the assessee, and for the reason that the cylinders had duly been dispatched to the hirers, it should be held that the same had been put to use by the lessor for business of hiring/letting out of the cylinders; (d) in the relevant accounting year itself the assessee/respondent company had received rental amount (which had been subjected to assessment also under the head ‘Business income’) on the basis of which it could be said and held that the cylinders had been put to use by the assessee in the business of hiring/letting out; and (e) thus all the requisite conditions for granting depreciation on cylinder stood fully satisfied.”
8. Aggrieved the Department came in second appeal before the Tribunal and alleged that the CIT (A) wrongly allowed 100 per cent depreciation on gas cylinders particularly when they were not used during the year, and letting out for hire is not sufficient to conclude actual user in this accounting year, since the assessee’s business was not letting gas cylinders on hire. It was contended that the assessee had leased out these cylinders to the seller himself in a planned way only to claim 100 per cent depreciation.
The Tribunal has held in the impugned order that the assessee has failed to establish hiring business, and the CIT(A) had allowed the claim of the assessee without satisfying the conditions thereof.
Learned counsel for the appellant urged that the Tribunal omitted to consider the facts. Learned counsel for the appellant has relied on the decision of the Supreme Court in CIT vs. Shaan Finance (P) Ltd. (1998) 146 CTR (SC) 110 : (1998) 231 ITR 308 (SC).
This decision has been considered by the Tribunal and in our opinion it has rightly been distinguished since the assessee in the present case failed to establish hiring business. In para 20 of its order the Tribunal has held the cylinders were not purchased for leasing business and one of the parties to whom the cylinders were leased out is the manufacturer and seller of the cylinders. To the other party cylinders were dispatched only a day before the close of the accounting period. The findings in the order of the Tribunal are finding of facts and hence we cannot interfere in this appeal.
The appeal is rejected.
[Citation : 262 ITR 70]
