TMI Blog2013 (8) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... . ft. and that nursing home is also equipped with an operation theatre. Therefore the plant and nursing home stated as plant and machinery and the depreciation should be allowed on it accordingly - Following decision of CIT Vs. Dr. B. Vankata Rao [1999 (2) TMI 11 - SUPREME Court] - Decided against Revenue. - IT Appeal No. 189 of 2005 - - - Dated:- 2-1-2013 - R.K. Agrawal And Ram Surat Ram (Maurya), JJ. For the Appellant : S. Chopra, A. Kumar, A.N. Mahajan, B.J. Agarwal, D. Awasthi, G. Krishna and R.K. Upadhyay. For the Respondent : K. Agarwal and R.R. Kapoor. ORDER:- The present appeal has been filed under Section 260 (A) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') against the order dated 25.2.2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice issued respondent's representative attended the proceedings. The respondent-assessee had claimed depreciation on Hospital building @ 25% treating it as a plant and machinery. The Assessing Officer did not allow the same and held that the depreciation will be allowed to the respondent-assessee as per normal rate applicable to building rather than plant and machinery. Feeling aggrieved the respondent-assessee preferred an appeal before the Commissioner of Income Tax (Appeals), Meerut, who vide order dated 28.7.1999 had accepted the claim of the respondent-assessee and held that the depreciation of 25% is applicable to the plant and machinery be allowed. Feeling aggrieved, Revenue filed appeal before the Tribunal. The Tribunal by the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the decision of Hon'ble Supreme Court of India in the case of CIT v. Dr. B. Venkata Rao 243 ITR 81 in which case the Hon'ble Apex Court made the following observations:- "We find from the order of the Tribunal as also the assessment order that the assesses nursing home is equipped to enable the sterilization of surgical instruments and bandages to be carried on. It is reasonable to assume in the circumstances, particularly having regard to the Tribunal's order which states that the sterilization room covers about 250 sq. ft. that the nursing home is also equipped with an operation theatre. In the circumstances, we think that the finding of the High Court should be accepted." 9. In view of the above and on going through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quipment, sterilisation room has been established is to be treated as plant machinery and depreciation admissible for plant and machinery is allowable. In reply Sri Chopra submitted that subsequent decision of the Apex Court in the case of CIT v. Anand Theaters , 244 ITR 192 ought to be followed. We have given our thoughtful consideration to the various pleas raised by the learned counsel for the parties. We find that in the case of Dr. B. Vankata Rao (Supra), the Apex Court upheld the decision of this Court in the case of Tulsi (S.K.) and Sons Vs. CIT reported in 187 ITR 685 wherein this Court has held that functional test ought to have been applied for claiming depreciation in respect of building structure. The Apex Court has held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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