TMI Blog2003 (9) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... f its business - Tribunal is right in holding that the assessee is entitled to depreciation u/s 32 - - - - - Dated:- 1-9-2003 - Judge(s) : D. H. WAGHELA., D. A. MEHTA. JUDGMENT The judgment of the court was delivered by D. A. Mehta J. -The following questions have been proposed by the appellant-Revenue stated to arise out of the Tribunal's order dated March 13, 2002, in I. T. A. No. 3614/Ahd of 1995: "(i) Whether the Appellate Tribunal is right in law and on facts in holding that the assessee engaged in the business of lease finance is entitled to depreciation under section 32 of the Income-tax Act, 1961, on the assets merely on signing of the lease agreement even though the asset is not put to use in the relevant year (ii) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Ltd. [1998] 231 ITR 308 upheld the finding of the Commissioner of Income-tax (Appeals) as regards allowability of depreciation. In so far as rate of depreciation at 40 per cent, is concerned, the Tribunal held that the same did not call for any interference. Heard Mr. T. U. Bhatt, learned standing counsel for the appellant-Revenue, and Mr. S. N. Soparkar, learned senior counsel appearing on behalf of the respondent. The principal contention raised on behalf of the Revenue was that the use contemplated by section 32 of the Income-tax Act, 1961 (for short "the Act") was actual user and only then allowance which would be in the nature of the deduction for wear and tear could be granted to the assessee. In relation to the decision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and leases it to third party is found to have satisfied the other requirements of the provision, it would be entitled to the deduction of depreciation in respect of such machinery or plant. It is further held by the apex court that where the business of the assessee consists of hiring out machinery and/or where the income derived by the assessee from the hiring of such machinery is business income, the assessee must be considered as having used the machinery for the purpose of its business. In light of the aforesaid settled position of law and the findings recorded by the Tribunal, we do not find that any substantial question of law within the meaning of section 260A of the Act can be said to arise out of the order of the Tribunal. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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