TMI Blog2017 (3) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... basis, for a period of three (3) years, from the date of commencement of the vessel loading operation. Jetty/loading platform, in this case, was erected by the Assessee, in order to effectuate its business under the contract, entered into with MMTC, which was tenure based, and, therefore, could not have been treated as anything else, but a temporary erection. Upon completion of the contract, the Assessee was required to dismantle it. The fact that the Jetty had other contraptions attached to it, such as, a conveyor belt, to facilitate the process of loading, cannot convert such a structure into a plant. Therefore, even, if, the functional test is employed, the main function of a Jetty, in the facts of the instant case, was to provide a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit to the assessee? 3. Whether under the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in relying on the decision of the Delhi Tribunal, when the law is settled in favour of the department by the decision of the Chennai Tribunal? 3. Mr.T.Ravikumar, counsel for the Revenue, at the outset, says that, question No.3 does not arise from the impugned judgment of the Tribunal and, therefore, in any case, does not require any discussion by this Court. 4. A perusal of the first question would show that, essentially, the issue, which arose for consideration before the Tribunal, was, whether, the Jetty, erected by the assessee, was entitled to 100% depreciation or, was to be treated as a plant and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epreciation, qua a loading platform (i.e., the Jetty), amounting to ₹ 6,94,59,742/-. 5.5. It is, in these circumstances, that notice, under Section 148 of the Act, was issued to the Assessee, on 28.03.2012. The Revenue appeared to be of the view that, the Jetty was in the nature of a plant and not a temporary structure, on which, 100% depreciation could be claimed. 5.6. In respect of the said notice, a reply was filed by the Assessee vide communication dated 25.04.2012. 5.7. Via this reply, the Assessee indicated to the Revenue that, its original return filed on 30.01.2006, should be treated as a return, in response to the notice, issued under Section 148 of the Act. 6. The record shows that due to the change in Officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporary structure set up for commercial consideration and, not for securing any capital asset. The Assessee emphasized the fact that the entire project had a life of only three years and, therefore, being a temporary structure, it was entitled to 100% depreciation, as per the provisions of Section 32 of the Act, read with Rule 5 framed thereunder. 8. The Assessing Officer, however, relying upon the judgment of the Allahabad High Court in the matter of Tulsi (SK) Sons V. CIT, (1991) 187 ITR 685, applied the functional test and came to the conclusion that, the Jetty/platform was a plant, as it was an apparatus/tool, which only enabled the Assessee to carry on its business. 8.1. The Assessing Officer's observation was that the Je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... For the assessment year 2005- 06, under Part-A heading tangible asset , and sub-heading I Building temporary erections such as wooden structure are falling 5 I.T.A. No.737/Mds/2014 under the classification building and 100% depreciation was prescribed. Old Appendix-1 Part A (1)(4) reads as follows:- purely temporary erection such as wooden structure ..... ( emphasis is ours ) 12. We have examined the record. According to us, the matter would turn on what is the nature of the structure, purpose for which it is erected, the periodicity for which, it is put in place, and lastly, the use to which the structure is put by the person/entity responsible for its erection. 12.1. Therefore, first and foremost, one needs to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form, in this case, was erected by the Assessee, in order to effectuate its business under the contract, entered into with MMTC, which was tenure based, and, therefore, could not have been treated as anything else, but a temporary erection. Upon completion of the contract, the Assessee was required to dismantle it. The fact that the Jetty had other contraptions attached to it, such as, a conveyor belt, to facilitate the process of loading, cannot convert such a structure into a plant. Therefore, even, if, the functional test is employed, the main function of a Jetty, in the facts of the instant case, was to provide a passage or, a platform to ferry articles onto the concerned Vessels. This could have been done manually. That it was done by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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