TMI Blog2012 (10) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the lease rent received by the assessee was assessed under the head ‘business income’ or under the head ‘income from other sources’. In our considered opinion, if the relevant lease rent derived from leasing of auto corners is assessed under the head ‘business income’ then assessee is eligible for depreciation u/s 32 and in case the said lease rent is assessed under the head ‘income from other sources, then assessee is eligible for depreciation u/s 57(ii). Remand back to AO – In favour of assessee TDS u/s 40(a)(ia) - JV was dated 10.6.2008 for commission payment on which TDS deducted and paid to the credit of the Central Government on 5.7.2008 – Deduction allowed in A.Y 2009-10 or 2008-09 – Held that:- As the method of accounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee on any asset which is not used for the purpose of the business of the assesse. The Assessing Officer further observed that depreciation is also not allowable on leased assets as the assessee was not in leasing business and he relied on the decision of Hon'ble Allahabad High Court decision reported in 262 ITR 70. He, therefore, disallowed depreciation of Rs. 8,55,125/- claimed on auto corners by the assesse. 4. On appeal, the CIT(A) confirmed the action of the Assessing Officer for the same very reasons. 5. The A.R of the assessee submitted that the assets were included in the block of assets and even if the assets were not used by the assessee during the year at all then also the assessee was eligible for deduction u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness income . 7. We have heard the rival submissions and perused the orders of the lower authorities and materials available on record. In the instant case, the undisputed facts are that the auto corners which were used by the assessee in earlier years for its business purposes were leased out during the year under consideration. The Revenue disallowed the claim of depreciation on the ground that leasing out of assets is not the business of the assessee and therefore, auto corners leased and not used for business purposes. We find force in the argument of the A.R of the assessee that leasing of auto corners by the assessee is not treated as its business then also depreciation is allowable on auto corners to the assessee as per the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5.7.2008. From this he concluded that the payment relates to the assessment year 2009-10 and not the assessment year 2008-09 and therefore, disallowed the claim of deduction to the assesse. 10. On appeal, the CIT(A) allowed the claim of deduction by observing that there was retrospective amendment by the Finance Act, 2008 extending the time of payment of TDS during the last month of the previous year on or before the due date for filing the return of income under sub-section (1) of section 139. Since the TDS was remitted on 5.6.2008, 5.7.2008 and 5.9.2008 with reference to the provisions of commissions and brokerage, he held that the provisions of section 40(a)(ia) were not applicable to the assessee and deleted the disallowance of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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