TMI Blog2022 (12) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... ding used for running of a hotel or carrying on cinema business could not be held to be a plant.Thus the question decided in favour of the Revenue and against the assessee by holding that the building which is used as a hotel or as a cinema theatre cannot be given depreciation as a plant. For the Principal Chief Commissioner or the Chief Commissioner or the Principal Commissioner or Commissioner to exercise jurisdiction under Sub-Section (2A) for reduction or waiver of interest, the said authority must be satisfied that Payment of such amount would cause or has caused genuine hardship to the assessee, Default in the payment of the amount on which interest has been paid or was payable under Sub-Section (2) of Section 220 was due to circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged under Section 220(2) of the Act for the assessment years 1991-92 and 1993-94. 4. On 09.12.2002, this Court had admitted the writ petition for hearing with an interim stay subject to the condition that petitioner should deposit 1/3rd of the demand within a period of four (04) weeks. 5. Impugned order dated 17.09.2002 came to be passed by the 1st respondent in the back drop of the following factual narrative. 5.1. Petitioner herein is an assessee under the Act having the status of a company and carrying on the business of processing and printing of cinematographic films. For the assessment year 1991, petitioner in its return of income claimed depreciation on theatre building @ 15%. In the assessment order dated 30.01.1995, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2002 partly allowed the claim of the petitioner for the period from the order passed by the CIT(A) till the order passed by the Tribunal. 1st respondent held as follows: 8. On the basis of the foregoing, I hold that the assessee has to bear interest under sec. 220(2) for a part of the period. The assessee s plea for full waiver of interest under sec. 220(2), therefore, is not acceptable. The assessee, however, could not be foisted with interest under sec 220(2) of the I.T.Act, 1961 from the date of the order of the Commissioner of Income Tax (Appeals) till the date of the decision of the Supreme Court (supra). Accordingly, the assessee is entitled reduction in interest under sec. 220(2) as under: For the Assessment Year 1991-92, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 220 says that any amount otherwise than by way of advance tax, specified as payable in a notice of demand under Section 156 of the Act, shall be paid within 30 days of the service of notice. Prior to 01.04.1989, it was 35 days which has now been made 30 days by the Direct Tax Laws (Amendment) Act, 1987 with effect from 01.04.1989. 7.1. As per Sub-Section (2), if the amount specified in any notice of demand under Section 156 of the Act is not paid within the period limited under Sub-Section (1) of Section 220, the assessee shall be liable to pay simple interest at 1% per every month or part of a month comprised in the period commencing from the day immediately following the end of the period mentioned in Sub-Section (1) and ending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that none of the above pre-conditions were attracted in its case. Nonetheless substantial relief has been granted by the 1st respondent. 9. As already noticed in the earlier portion of this order, the dispute in question was regarding quantum of depreciation on theatre building. While in the two assessment years, petitioner had claimed 15% and 25% respectively, the same was allowed by the assessing officer to the extent of 10% only in the two orders of assessment. 10. In Anand Theatres (supra), question before the Supreme Court was whether a building which is used as a hotel or as a cinema theatre could be considered to be an apparatus or a tool for running the business so that it should be termed as a plant whereafter depreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf a plant, otherwise the Court would not have gone into the question whether the sanitary fittings used in bath room was plant. (3) For a building used for a hotel, specific provision is made granting additional depreciation under Section 32(1)(v) of the Act. (4) Barclay, Curie and Co. s case. 1969 (1) WLR 675 decided by the House of Lords pertains to a dry dock yard which itself was functioning as a plant that is to say, structure for the plant was constructed to that dry dock can operate. It operated as an essential part in the operations which took place in getting a ship into the dock, holding it securely and then returning it to the river. The dock as a complete unit contained a large amount of equipment without which the dry do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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