TMI Blog2010 (3) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... land, but the same is a specialized structure constructed on the land, with the required levels of undulation and other technical requirements as per the rules of the game of golf. It is a specialized professional assignment, which only a few in India are capable of. For this purpose, the company had hired the best in the world of Golf i.e. Greg Norman to provide the specialized inputs. Even the grass on the course is imported and the course has an elaborate network of pipes and channels for the purposes of not only irrigating the place but also efficient removal of excess water, which is controlled through computers. Thus, Golf course constitutes Plant and eligible for depreciation @25% as has been allowed to the assessment . 2.2 AO did not agree with the above proposition. He referred to the case laws of Lake Palace Hotels and Motels P Ltd. (1997) 226 ITR 561; Anand Theatres (2000) 244 ITR 192; Gwarior Rayone Silk Mfg. Co. (1992) 196 ITR 149(SC). AO concluded that structure built up for golf courses and also hospitality services is not covered in the block of assessment plant , but it is covered in the asset building which is used by the hotels for hospitality ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce that the issue of treating the Golf course as a plant has not been disputed in most of the cases which are doing the business of running the Golf Course. As far as the reliance on the various courts citations made by the Assessing Officer is concerned, I find that they are not applicable because of messed up facts of the case. In totality of all the facts and circumstances I am of the view that the claim of the appellant for providing the depreciation @25% on the Golf Course is in order. Appellant s succeed on this ground of appeal. 2.4 Against the above order the revenue is in appeal before us. 2.5 We have heard both the counsels and perused the records. The AO in this case has treated the Golf Course akin to hotel building and allowed 20% depreciation for A.Y. 2002-03 and 2003- 04. For A.Y. 2005-06 he has allowed depreciation as applicable to building @10%. It is settled law that Tribunal cannot take away the relief that AO has given. Now further we find that on the same set of facts in assessee s own case, the impugned asset was treated as plant for A.Y. 2001-02 by the AO himself and depreciation @25% was allowed. The assessment was done u/s 143(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the Golf Course even after its creation and completion and therefore, these structures can not be considered as purely temporary erection. In view of these facts the Assessing Officer allowed depreciation @10% on the concrete built up surface being used for office and other activity and disallowed 90% of the depreciation which worked out at ₹ 2,00,47,230/- in the assessment year 2002-03 and ₹ 1,00,84,466/- in the assessment year 2003-04. 3.2 Upon assessee s appeal ld. CIT(A) held as under:- Rival contentions have carefully been considered. After considering the rival submissions I am of the view that the nature of the buildings and superstructures, such as, guest house, administrative office, officers mess, sub-stations for DG sets, meter room, workshop, etc., cannot be considered as temporary construction. All these buildings are fitted with all furniture and fixture. They are made of concrete and freshly purchased raw-material. It has also been observed that the lessor Competent Authority has allowed the existence of continuance of these buildings not only for five years in first instance but had extended for further period at the request o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant shall be required to remove all temporary structures before applying for occupancy certificate. In our considered opinion, these facts do not ipso-factor prove that the construction were temporary. As pointed out by ld. CIT(A) the said structures have remained so even after the expiry of 9 years. It is a categorical finding of authorities below, Ld. counsel has himself agreed that the construction was in cement and the same was pakka construction. We find that assessee s reliance on short period of the lease to treat the pakka construction as temporary construction is also not in accordance with the mandate of the law. Explanation (1) of section 32 even provides that construction of structure in lease hold premises also should be treated as if the building was owned by the assessee. Hence we find that there is no infirmity in the orders of the authorities below on this issue and accordingly we confirm the order of the ld. CIT(A). 3.7 In the result the assessee s appeal for the assessment year 2002-03 and 2003-04 are dismissed. Assessment year 2005-06 3.8 The issue raised is that the ld. CIT(A) erred in omitting the adjudication Grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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