TMI Blog2007 (3) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... AWAL J.— 1. The Income-tax Appellate Tribunal, Allahabad, has referred the following questions of law under section 256(1) of the Income-tax Act, 1961 ('the Act'), for opinion to this court "1. Whether, on the facts and in the circumstances of the case, the nursing home of the assessee could be treated to be a plant for the purposes of depreciation? 2. Whether, on the facts and in the circumstances of the case, the nursing home of the assessee could be treated as a hotel for the purposes of depreciation ?" 2. The reference relates to the assessment year 1989-90. 3. Briefly stated, the facts giving rise to the present reference are as follow: 4. The applicant's source of income are salary and profession. She is running a nur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the hon'ble Karnataka High Court in this regard and negatived the contention of the assessee. The Tribunal further held on whatever equipments the claim of depreciation applicable to plant was made before the first appellate authority, the same having been dealt with by the first appellate authority and the point was allowed by it. On beds and operation theatre equipments installed in the nursing home, which were fitted with special surgical beds, the first appellate authority allowed depreciation applicable to plant. That having been allowed by the first appellate authority, whatever remained of the nursing home, was nothing but rooms of bricks and stones, which could not be called, by any stretch of imagination, to be a plant. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing counsel, however, submitted that the applicant had claimed depreciation on the building of the nursing home on the rate which is applicable Io a hotel by specifically stating before the Assessing Officer that the nursing home provided lodging to the patients on daily rate and, therefore, it was like a hotel. No claim for allowance of depreciation on the nursing home as a plant was made before the assessing authority. Even before the first appellate authority, no such claim was made. The claim for depreciation applicable to plant was only confined to surgical beds and equipments installed in the operation theatre and also surgical equipment necessary for the purpose of profession, which claim has been allowed by the first appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the first appellate authority, i.e., the Commissioner of Income-tax (Appeals), no such plea regarding depreciation admissible to the nursing home building as plant, was made. Even before the Commissioner of Income-tax (Appeals) the plea of hotel was reiterated and depreciation on surgical beds and equipments and surgical equipments were claimed as plant. The Commissioner of Income-tax (Appeals) had allowed the claim on surgical beds and equipments and surgical equipments by treating them to be plant. However, in appeal filed before the Tribunal, a plea was raised that the nursing home is a plant and, therefore, the depreciation at the rate applicable to it should be allowed. This plea was raised for the first time, which had not been acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of a nursing home therein or whether it is just any premises utilised for that object. We find from the order of the Tribunal as also the assessment order that the assessee's nursing home is equipped to enable the sterilisation 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 sterilisation room covers about 250 sq. ft. that the nursing home is also equipped with an operation theatre. In the circumstance, we think that the finding of the High Court should be accepted." 10. Applying the principle laid down in the aforesaid case to the facts of the present case, we find that there is no finding recorded by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not rule out a case for raising an additional ground before the Appellate Assistant Commissioner if the ground so raised could not have been raised at that particular stage when the return was filed or when the assessment order was made, or that the ground became available on account of change of circumstances or law. There may be several factors justifying the raising of such a new plea in appeal, and each case has to be considered on its own facts. If the Appellate Assistant Commissioner is satisfied, he would be acting within his jurisdiction in considering the question so raised in all its aspects. Of course while permitting the assessee to raise an additional ground, the Appellate Assistant Commissioner should exercise his discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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