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TMI Blog2016 (4) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the order passed by this Court on 11.03.2016. The revenue has no objection to the said order being part of record. The same is therefore kept on record. Miscellaneous Appeal No.405 of 2007 1. The assessee is in appeal under Section 260A of the Income Tax Act, 1961 against an order passed by the Income Tax Appellate Tribunal, Patna Bench, Patna (for short, 'the Tribunal') on 13th of April, 2007, arising out of I.T.A. No. 240/Pat. 2005, pertaining to Assessment Year 1999-2000. 2. The assessee filed its return on 3rd of December, 1999 showing total income of Rs. 1,10,26,490/-. The return was processed under Section 143(1)(a) of the Act. However, the learned Assessing Officer found that the assessee has claimed depreciation on f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1998 and 1998-1999; meaning thereby that the order of assessment, as originally framed for the Assessment Years 1997-1998 and 1998-1999, stands restored. 5. This Court has framed the following substantial questions of law:- "Whether on the facts and in the circumstances of the case, the claim of the assessee that the building which houses the manufactory is a plant within the meaning of Section 43(3) of the Income Tax Act, 1961 and whether the assessee is entitled to claim the depreciation of the factory building at the rate of 25%?" 6. Learned counsel for the appellant refers to a recent Supreme Court judgment reported as [2015] 379 ITC 335 (SC) -Assistant Commissioner of Income Tax v. Victory Aqua Farm Ltd.; the judgment of the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the popular sense, i.e., the people conversant with the subject-matter would attribute to it, has to be taken. The building in which the business is carried on cannot be considered to be a 'plant'. In Dr. B. Venkata Rao case, the nursing home equipped to enable the sterilization of surgical instruments and bandages was held to be a 'plant' applying the functional test. 9. Considering the judgment in Anand Theatres case, the Supreme Court in Victory Acqua Farm Ltd. found that it is difficult to read the judgment in the case of Anand Theatres so broadly. The question before the Court was whether a building was used as a hotel or a cinema theatre could be given depreciation on the basis that it was a 'plant' and it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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