TMI Blog1962 (2) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... the business of motor transport and maintains a fleet of buses for that purpose. During the year of account, he claimed depreciation allowance under section 10(2) (vi) in respect of one of the buses bearing registration No. Mpn-44 which was in his possession under a hire purchase agreement. The claim was disallowed by the Income-tax Officer on the ground that the said bus was not the property of the assessee at the material time. The Appellate Assistant Commissioner upheld this rejection in appeal. The claim was again pressed before the Appellate Tribunal. Along with it the assessee also urged before the Tribunal for the first time that he should have been allowed development rebate in respect of the bus under section 10(2) (vib). It was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Commissioner of Income-tax vs Buckingham Carnatic Company Limited ( 1935 ) 3 ITR 384 ( PC ), has held that the word assessee in section 10(2) (vi) refers to the person who owns the property in question and the cost to be considered for the purpose of calculating depreciation allowance is the original cost of the purchaser who is being assessed and not written down value to his predecessor. There can, therefore, be no doubt that, for claiming depreciation allowance in respect of an asset, the assessee must be the owner of the asset. The same requirement is essential for development rebate under clause (vib). It is true that this clause does not in so many words say that the machinery or plant should be the property of the assessee. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an element of sale and that Explanation 1 to section (2) (g) of the Bengal Finance (Sales Tax) Act, 1941, introducing into the concept of sale as ordinarily understood a legal fiction deeming a sale under a hire purchase agreement to be a sale for taxability under that Act, was valid. The Madras case, namely, commissioner of Income-tax vs Sri Rama Vilas Service (Private) Ltd ( 1960 ) 38 ITR 25 , only holds that buses and lorries are machinery or plant installed for the purposes of section 10(2) (via) and section 10(2) (vi-b). The question of ownership of the asset for the purposes of clauses (vi) and (vib) did not arise in that case. The hire purchase in Shamsher Ali Abdul Hussain vs Commissioner of Income-tax ( 1945 ) 13 ITR 240 , wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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