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TMI Blog2023 (3) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 2. Whether on facts and circumstances of the case, the CIT(A) was right in deleting the addition of Rs.18,74,048/- made by the AO on account of excess depreciation claimed, relied on the decision of the jurisdictional High Court in the case of M/s. Joy Alukkas Pvt. Ltd. without considering the fact that the decision of Kerala High Court in the case of M/s. Joy Alukkas Pvt. Ltd. was not accepted by the Department and further appeal has been preferred before the Supreme Court. 3. For these and other grounds that may be urged at the time of hearing, it is requested that the order of the CIT(A) may be set aside and that of the AO restored." 2. Facts of the case are that the original income tax assessment was completed under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee, can be treated as a temporary structure. The Assessing Officer has also pondered over the issue that since the period of lease is extendable; the assessee's argument that structures are temporary is not sustainable. 3.1 However, in view of the decision of the Jurisdictional High Court of Kerala in the case of M/s. Joy Alukkas India Pvt. Ltd (282 CTR 551) (Ker.) and the decision of the Hon'ble Apex Court in the case of Madras Auto Service Pvt. Ltd, (233 ITR 468) (SC) there does not remain any controversy, where even the lease period is held to be not relevant. The reliance for differentiating the nature of expenditure is held to be as the construction has been raised on a premise which is a leasehold premise, any expenditure inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee in a particular case is capital expenditure or revenue expenditure has to be decided on the facts of that case applying the relevant tests. Explanation 1 to section 32(1)(i) of the Income-tax Act, 1961, does not intend to lay down that whenever expenditure has been incurred by the assessee for the purpose of business or profession on the construction of any structure or doing of any work in or in relation to or by way of renovation or improvement to the building, such expenditure has to be mandatorily treated as capital expenditure. The Explanation only meant that in the event any capital expenditure is incurred by the assessee, the provisions of section 32(1) shall be applicable as if the structure or work is a building owned by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r holding that the expenditure incurred by the assessee was not a capital expenditure but revenue expenditure were observations based on the facts of that case and relevant test applied by the Division Bench. The observations made by the Division Bench in paragraphs 29 and 30 were to be confined to the facts of that case. Whether an expenditure incurred by the assessee was a capital expenditure or revenue expenditure was to be decided on the facts of each case applying the relevant tests." 6. In our opinion, the facts before us are similar to that one considered by the Hon'ble Kerala High Court in the case of Indus Motors Pvt. Ltd. cited (supra). Respectfully following the above ratio laid down in the above decision by Hon'ble Kerala High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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