9911796707
TMI Blog2008 (2) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... 98-99 raising the following substantial question of law: " Whether on the facts and law, the Hon'ble Income Tax Appellate Tribunal was legally justified to ignore clause (b) of section 41(2) of I. T. Act, when the entire machinery of an independent unit no.1 as owned and used by the respondent for business and depreciation allowed to it u/s 32 of I. T. Act, was sold in the previous year.?" 2. The respondent assess is a company which filed its return of income tax for the assessment year 1998-99 on 30.11.1998 declaring total income of Rs.16,83,090/-. The assessment was completed on 29.3.2001 under Section 143(3) of the Act on a total income of Rs.39,37,200/-. While completing the assessment, the Assessing Officer made an addition of RS.&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 5.8.2005. 5. Sh. Sanjeev Bansal, learned counsel appearing for the appellant-revenue has argued that the entire machinery, owned by the respondent and used for independent business of unit no.1 in respect of which depreciation was claimed was sold in the previous year. 6. Accordingly, the excess amount of sale consideration of the machinery over the written down value was considered as profit chargeable to tax under the head " Business Income" within the meaning of clause (b) of Section 41(2) of I. T. Act, on sale of machinery on which depreciation was claimed at the rate of 12.50% under clause (i) of Sub section (1) of Section 32 of I. T. Act. It was also argued by him that the entire machinery of unit no.1 as owned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 32(1) of the Act as prescribed. Thus, the Tribunal found no infirmity in the order of the Commissioner, Income Tax ( Appeals ) and dismissed the appeal filed by the revenue. 9. There is no material on the record of the case to arrive at a different finding of fact than the one given by the Tribunal regarding the existence of block of assets in the present case. There is also no evidence on the record that the entire Plant and Machinery of unit no.1 has been sold and the purchase of Rs.75,33,668/- of new machinery have been made for the unit no.2. From the facts it is clear that there was addition as well as sale but the Plant and Machinery as a whole remained in existence. Thus, the provisions of Section 32(1) of the Act w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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