TMI Blog1991 (7) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... he question referred at the instance of the assessee for our opinion reads : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assets which were sold during the year should have been used in the business during the previous year other than the previous year in which they were first brought into use ?" The year of assessment is 1972-73 corresponding to the previous year ending September 25, 1971. During the assessment year, the assessee sold two of its assets, the estate of Mananthody and another estate to M/s. Gounder Co. Pvt. Ltd. The sale deed was executed on April 30, 1971, although possession of the assets had been given to the purchaser on May 1, 1970. While determining th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 265, quoted in the above decision, are apposite (at page 331 of 51 ITR): "The word 'used' has been read in some of the pool cases in wide sense so as to include a passive as well as active user. It is not necessary, for the purposes of the present appeal, to express any opinion on that point on which the High Courts have expressed different views. It is, however, clear that in order to attract the operation of clauses (v), (vi) and (vii), the machinery and plant must be such as were used, in whatever sense that word is taken, at least for a part of the accounting year. If the machinery and plant have not at all been used at any time during the accounting year, no allowance can be claimed under clause (vii) in respect of them and the secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion on that point on which the High Courts have expressed different views. It is, however, clear that in order to attract the operation of clauses (v), (vi) and (vii), the machinery and plant must be such as were used, in whatever sense that word is taken, at least for a part of the accounting year. If the machinery and plant have not at all been used at any time during the accounting year, no allowance can be claimed under clause (vii) corresponding to sec. 32(1)(iii) of the Income-tax Act, 1961) in respect of them and the second proviso also does not come into operation." That is the position in law cannot, therefore, be disputed. Even otherwise, to have an assessment of the income of the business, every claim for deduction must nece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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