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TMI Blog2017 (3) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Appellate Tribunal was correct in granting depreciation on "Jetty" at 100% under the head "Building - Temporary Structure" instead of allowing depreciation at 25% under the head "Plant"? 2. Whether under the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in holding that the Jetty was a temporary structure, without appreciating the fact that the structure had enduring benefit 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , refund, in the sum of Rs. 6,670/- was ordered, in favour of the Assessee. 5.3. It appears that, the return of the Assessee was examined, along with the depreciation schedule appended thereto. 5.4. A perusal of the depreciation schedule revealed that the Assessee had claimed depreciation, in the sum of Rs. 8,86,66,504/-. Out of this amount, the Assessee had claimed 100% depreciation, qua a loading platform (i.e., the Jetty), amounting to Rs. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s indicated above, was the amount claimed as depreciation. 7.5. Furthermore, the Assessee took the stand that, upon completion of the contract, it was required to dismantle the loading platform/Jetty, which, as indicated above, was constructed at its own cost. 7.6. In sum, it was the Assessee's case that the loading platform/Jetty was a temporary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand, one may have to set out the relevant entry incorporated in the appendix No.1 appended to the Act, as obtaining in the relevant A.Y., i.e., A.Y.2005-06. 11.1. In paragraph 7 of the judgment of the Tribunal, the relevant Entry has been extracted. For the sake of convenience, the same is extracted hereunder: ".... 7. ....... 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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erations, or, for a period of three months from 24.06.2009. In addition thereto, under the terms of the contract, MMTC, as it appears, could use the Jetty, till 31.03.2010, on the same terms and conditions as per mutually agreed terms arrived at between parties. 14. Quite clearly, the 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, c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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