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C.I.T. v. M/S Kamal Enterprises - INCOME TAX REFERENCE No. 113 of 1995 [2005] RD-AH 984 (6 April 2005)


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Court No.37

Income Tax Reference No.113 of 1995

Commissioner of Income tax, Lucknow v. M/s Kamal Enterprises, Sitapur.

Hon'ble R.K.Agrawal, J.

Hon'ble Rajes Kumar, J.

The Income Tax Appellate Tribunal, New Allahabad, has referred the following question of law under Section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") for opinion to this Court:-

"Whether on the facts and in the circumstances of the case, the Tribunal was legally justified in upholding the action of the Appellate Assistant Commissioner in directing the Income-tax Officer to allow depreciation on generator at the special rate of 20%?"

Briefly stated the facts giving rise of the present Reference are as follows:

The present reference relates to the Assessment Year 1985-86. During this year the respondent-assessee had claimed depreciation at the rate of 20% on generator, which was allowed by the Income Tax Officer at the rate of 10%. However, the Tribunal allowed depreciation on generator at the special rate of 20% accepting the claim of the respondent-assessee.

We have heard Sri R.N.Upadhyaya, the learned counsel for the Revenue.  No body has put in appearance on behalf of the respondent.

We find that in the Appendix I, which provides for rates of depreciation on different items during the relevant assessment year, as the generator has not been specifically mentioned in list of the items of special rate and, therefore, general rate of depreciation of machinery and plant, which is 10% per annum, shall be admissible. It may be mentioned here that the generator even does not fall under any other item under special rate nor there is any such finding or authority that the generator is covered under any of the items.

In view of the aforesaid discussion, the depreciation on the generator at the rate of 10% was admissible.

We, accordingly, answer the question of law referred to us in the negative, i.e., in favour of the Revenue and against the assessee. However, there shall be no order as to costs.




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