Cit vs M/S Ansal Prop.& Indus.Overseas ...
2010 Latest Caselaw 3815 Del

                                      UNREPORTED
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             ITR No.241/1992

CIT                                                  ..... Appellant
                        Through:   Mr.Sanjeev Sabarwal, Adv. with
                                   Mr.Utpal Saha, Adv.
               versus

M/s. Ansal Prop. & Indus. Overseas Projects     ..... Respondent
                  Through: Mr.Satyen Sethi, Adv. with
                              Mr.Arta Trana Panda, Adv.

%                            DATE OF DECISION: August 16, 2010

CORAM:
HON'BLE MR. JUSTICE A.K.SIKRI
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?


                        J U D G M E N T (ORAL)

16.08.2010 : A.K.SIKRI, J.

1. Following questions are referred by the Tribunal for our

opinion:-

"2. In upholding the order of the CIT (A) allowing assessee's claim of depreciation @ 100% on steel plates and scaffolding by ignoring the material fact that Steel plates and scaffolding can not be termed as Plant & Machinery and also that each plate and scaffolding are not an independently a simple complete unit?

3. In upholding the order of CIT(A) allowing assessee claim of investment allowance by ignoring

the material facts that assessee is engaged in building construction activities and is not an industrial undertaking as defined under the Act?"

2. In so far as second question is concerned, it is conceded by

Mr.Satyen Sethi, learned counsel appearing for the assessee that this

question is now finally determined by the Supreme Court in the case

of CIT Vs. N.C.Budhiraja 204 ITR 412 holding that the construction

of building does not amount to producing an article or thing. Thus, it

clearly follows that the assessee who is engaged in the building

construction activity would not be treated as industrial undertaking

and is not entitled to investment allowance. This question is,

therefore, answered against the assessee.

3. To determine the first question we take note of following facts

which appear on record:-

"5. The assessee claimed 100% depreciation in respect of steel shuttering plates and scaffolding of the value of Rs.1,55,556/- on the basis that each shuttering plate and scaffolding constituted in itself a plant the value of which was below the value of the plant on which 100% depreciation was allowable. The assessing officer was of the view that the life of the material used in scaffolding was more than 5 years, besides each shuttering plate did not constitute plant in itself and, therefore, did not grant depreciation at 100%. In appeal before the CIT (A), the assessee's claim was accepted on the basis of an order passed by the Ist Appellate Authority in the case of an associate concern where on similar facts, identical controversy was considered. This order was upheld by the Tribunal."

4. Following its own order the Tribunal granted 100%

depreciation on the said steel plates and scaffolding.

5. The primary question which needs to be decided is as to

whether each steel plate and scaffolding is treated as an independent

unit. This very aspect relating to steel plates and scaffolding itself

came up for consideration in the Madras High Court in CIT Vs.

Alagendran Finance Ltd. (2003) 264 ITR 269. After referring to

various case laws in its detailed judgment rendered by the Court, the

Court formed the opinion that each steel plate and scaffolding was to

be treated as complete unit. It was primarily because of the reason

that single individual centering sheet could be sufficient for a

particular work in the process of construction of a building and on that

basis the Court opined that it would constitute a plant and if the value

thereof was less than Rs.5,000/-, 100% depreciation was allowed as

per proviso to Section 32(1) (ii) of the Act. Identical view was taken

by the Rajasthan High Court in CIT Vs. Mohta Construction Co.

(2005) 273 ITR 276 which case was also concerned with plates and

scaffolding used in construction work.

6. This Court in the case of JCIT Vs. Anatroncis General Co.(P)

Ltd. (2001) 247 ITR 25 had the occasion to deal with similar issue,

albeit in the context of bottles which the assessee company in the case

used to supply to other concerns and the question was whether each

bottle would be treated as plant and would be eligible for 100%

deduction. The question was answered in the affirmative.

7. Be that as it may, since we have two decisions of Madras High

Court and Rajasthan High Court relating to claim of depreciation

under Section 32 in respect of plates and scaffolding itself, following

the aforesaid two decisions we answer the reference in favour of the

assessee and against the revenue.

A.K. SIKRI (JUDGE)

REVA KHETRAPAL (JUDGE) AUGUST 16, 2010 vg