TMI Blog1995 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal referred the following questions under section 256(1) of the Income-tax Act, 1961 (briefly, the Act), for the opinion of this court : R. A. Nos. 376 and 377 (All) of 1989 : "1. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that the assessee is not eligible to exemption under section 10(26B) of the Income-tax Act, 1961 ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that the assessee was not entitled to exemption under section 10(20A) of the Income-tax Act, 1961 ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the dismissal of the claims of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Harijan Evam Nirbal Vargh avas Nigam [1997] 226 ITR 696 (All)), relating to the assessment year 1979-80, referred to this court at the instance of the instant assessee, In that order, we found that the income having accrued to the assessee from executing the housing schemes undertaken for the promotion of the members of the Scheduled Castes only is exempt and the income relatable to the main objects Nos. 2, 3, 4 and 5 of the memorandum of association of the assessee and the income from the housing schemes, in so far as it related to the promotion of backward classes and other categories was not exempt. Following our order dated December 6, 1995, given in I. T. R. No. 86 of 1986 (CIT v. Harijan Evam Nirbal Varg Avas Nigam [1997] 226 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, on the facts and in the circumstances of the case, the Tribunal was, in law, justified in holding that depreciation on shuttering material is allowable ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was in law, justified in holding the losses on account of theft, pilferage, etc., aggregating to Rs. 5,68,849 were allowable ?" Sri G. C. Sharma, learned counsel for the assessee, stated before us that question No. 1 arising from R. A. Nos. 379, 380 and 381 of 1989 be answered in the negative. In view of this statement question No. 1 for all the three assessment years, arising from the reference applications of the Revenue is, therefore, answered in the negative. Then we take up question No. 2 arising from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the fact that articles like books and surgical equipment are expressly included in the definition of plant in section 43(3) of the Act. It includes any article or object, fixed or movable, live or dead, used by the businessman for carrying on his business. It is not necessarily confined to an apparatus which is used for mechanical operation or processing or is employed in mechanical or industrial business. It, however, does not cover the stock-in-trade or an article which is merely a part of the premises in which business is carried on. To reach a correct conclusion whether a given item is plant or not, the inquiry which must be made is as to what operation the apparatus performs in the assessee's business. The relevant test to be appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the losses did not occur in the assessment year 1984-85 as the possibility of recovery from the employees was not exhausted and that losses itself were noticed at the end of the accounting year and, therefore, in his opinion, its write off was premature. The Appellate Tribunal held as follows : "In our opinion, the finding of the learned Commissioner of Income-tax (Appeals) is not correct. The loss is genuine and real and it has taken place and has also been detected from the accounting period under consideration. We do not see any possibility of its recovery merely on the ground that notices to that effect have been issued to some of the employees. In any case, if any recovery is subsequently made, it would be possible to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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