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2018 (7) TMI 1259 - HC - Income TaxDepreciation on building held on long term lease for 99 years - Held that:- We find on an examination of the subject order of the tribunal that in legal principle the tribunal has not been able to deny the claim that a lessee of over 12 years of a place of business is deemed to be the owner under the Income Tax Act, 1961 and can claim depreciation. But as far as the case of the assessee is concerned, we find that the Tribunal has not been able to come to any clearcut finding as to whether the subject lease was for 12 years duration or not. Revenue relied on Peerless General Finance & Investment Co. Ltd. vs. Commissioner of Income-tax, W.B.-I, Kolkata (2012 (10) TMI 896 - CALCUTTA HIGH COURT) a Division Bench judgment of our Court. This pertained to the assessment year 1993-94 of the assessee. Relying on paragraph 10 of the judgment he submitted that the assessee had not been able to substantiate that the lease was for more than 12 years. That is not the case. Mr. Chatterjee pointed out that the paragraph in question was a continuation of the submission on behalf of the assessee recorded by the Court and should not be taken to be its finding. Mr. Chatterjee is absolutely right though we confess that at least one sentence in the paragraph has been worded in such a way so as to create a doubt that it is the submission of a party or a finding by the Court. Deduction and expenditure disallowed on the ground that such expenses were on account of income which was exempt from taxation and hence could not be claimed as an allowable expense - Held that:- The view expressed by a Division Bench of this Court in Commissioner of Income Tax vs. Crish Park Vincom Ltd. [ 2015 (5) TMI 264 - CALCUTTA HIGH COURT] that in appeal this Court should not interfere with the findings of fact is correct on legal principles. But unfortunately there is no finding or determination of deductible expenses, in this case. As far as both these issues are concerned, the questions are remitted back to the Tribunal to redetermine them in accordance with law, withing a period of six weeks from the date of communication of this order. Those parts of the subject order of the Tribunal dealing with the aforesaid issues are necessarily set aside. Denial of natural justice - Held that:- Under section 260A this Court can only interfere if a substantial question of law is involved. If we entertain these appeals flood gates of appeals could be thrown open which was not the intention of the legislature. We do not think that this finding of the tribunal should be interfered with. If we do then in all cases this ground may be taken and a finding arrived at by the Tribunal which will be carried in appeal under section 260A, we take the subject matter covered by the question as a question of fact only and do not entertain the same.
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