2005 (2) TMI 53 - HC - Income Tax

Whether Tribunal right in granting depreciation under section 32 for the building occupied by the assessee-company by reversing the first appellate order confirming disallowance in assessment? - controversy arose because the assessee-company admittedly is not the owner of the building under general law of the land inasmuch as the firm which constructed the building on the land belonging to it has not transferred the title to the land or the building to the assessee-company but only allowed use of the building by the assessee under an agreement - So long as the assessee has no enforceable right of title over the building against its actual owner the partnership firm the assessee s claim of depreciation as its owner is untenable and was rightly rejected by the Assessing Officer and confirmed in first appeal order of tribunal is set aside

Issues Involved:
1. Whether the Income-tax Appellate Tribunal was right in granting depreciation under section 32 of the Income-tax Act for the building occupied by the assessee-company.

Issue-wise Detailed Analysis:

1. Ownership and Depreciation Eligibility:
The primary issue revolves around whether the assessee-company qualifies as the owner of the building for the purpose of claiming depreciation under section 32 of the Income-tax Act. The controversy arises because the assessee-company is not the owner of the building under general law. The firm that constructed the building on its land did not transfer the title to the assessee-company but allowed its use under an agreement dated February 1, 1989.

2. Agreement Terms and Possession:
The agreement between the firm and the assessee-company, represented by the same person, Dr. M. Ali, stipulates that the firm would permit the company to take possession of the hospital building upon completion. The company agreed to advance funds for the construction. However, the agreement does not confer any title in the building to the assessee-company. The terms state that the building shall belong to the company upon taking possession, but the firm retains a lien until the construction cost is fully paid. The land remains the property of the firm, and there is no obligation for the firm to transfer the title to the assessee-company.

3. Legal Precedents and Judicial Opinions:
The court examined various judicial decisions cited by both parties. The settled position is that depreciation should not be denied on the technical ground of the absence of a registered document if the assessee holds possession and uses the building as its owner. However, in this case, the agreement does not provide for the transfer of title to the building, and the assessee's right is limited to possession. The court noted that the agreement appears to be made for the purpose of claiming depreciation and is not enforceable as it lacks definite terms for the transfer of title.

4. Explanation 1 to Section 32(1) of the Act:
The court referred to Explanation 1 to section 32(1) of the Act, which allows depreciation for buildings held by the assessee under a lease or other right of occupancy if capital expenditure is incurred by the assessee. Since the assessee was not the owner of the building during the relevant years, the court determined that the assessee's case falls under this explanation. The assessee's occupation of the building is not as its owner but by virtue of the grant by the firm.

5. Examination of Case Law:
The court reviewed several decisions, including CIT v. Parthas Trust, CIT v. Abrol Engineering Co. P. Ltd., CIT v. General Electronic Haryana (P) Ltd., Gowersons Publishers (P) Ltd. v. CIT, CIT v. Podar Cement (P) Ltd., and CIT v. Sirehmal Nawalakha. These cases involved situations where the assessee was allowed depreciation without a registered sale deed, but the facts differed significantly. In the present case, the building was constructed by the firm, and the assessee only reimbursed the construction cost without any commitment from the firm to transfer the title.

6. Conclusion and Judgment:
The court concluded that the agreement does not confer any title on the assessee-company, and the use of the building by the assessee cannot be considered as use as its owner. Therefore, the Tribunal's order granting depreciation was not sustainable. The court answered the question in favor of the Revenue and against the assessee, allowing the appeals and setting aside the order of the Appellate Tribunal, thereby restoring the order of the Commissioner of Income-tax (Appeals).

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