9911796707
TMI Blog2005 (10) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative for the assessee submitted THAT: The Appellate Commissioner erred in not considering the submissions made vide letter dated 23-2-2000 and submissions made before the Assessing Officer vide letter dated 25-11-1998. He has erred in not considering the amendments of section 43(3) while upholding the disallowance. He has therefore erred in upholding the disallowance of livestock written off. It is wrong for him to have upheld the decision of the Assessing Officer that parent and grand parent birds which have been treated all along as capital assets cannot be taken as current assets and written off during the year. Thus, he has erred in confirming the decision of the Assessing Officer that loss arising out of destruction of parent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is that the birds, i.e., livestock and grand parent stock, were used for assessee's business purposes. Copy of the assessee's annual accounts are also furnished in the assessee's paper-book, wherein the P L Account shows sales that took place during the year at over Rs. 73 lakhs, while in the preceding year the same was at Rs. 118 1akhs. The explanation of the assessee is that these sales could have come about only by the use of the birds which were destroyed, and therefore, the assessee indeed carried on business during the year and used all the birds for its business purpose. The assessee's contention that this fact has not been disputed by the Assessing Officer at all, has not been controverted by the Department before us. That apart, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of animals only and not birds or chicken, the latter two not falling under the word 'animals' the relief cannot be allowed. This argument falls to the ground in view of the decision of the Delhi High Court in the case of Brig. Kapil Mohan and relied upon by the assessee, wherein Hon'ble Delhi High Court has held as below:- "Broiler chickens are 'animals' falling within section 2(2)(i)(c) of the Wealth-tax Act, 1957, and are not to be included in 'assets' for the purposes of wealth-tax. Even in common parlance birds are treated as 'animals' and the definitions of the expression 'animal' in the dictionaries are not at variance with the common parlance meaning attributable to the expression. Animals in law include any animate being, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, i.e., given artificial death and not died, i.e., natural death, the subsequent words 'or become permanently useless for such purposes' employed by the said provision comes to the rescue of the assessee. No body would destroy or kill any bird or chicken, unless it has become permanently useless 'for such purposes'. 5.6 A.C. Sampath Iyengar's Treatise on Law of Income-tax, 9th Edition, Vol. 2 at pages 2374 and 2375 also throws light, being commentary dealing with section 36(1)(vi), as below:- "In the case of K.S. Venkatasubba Reddiar v. CIT 125 ITR 750 (Mad.), wherein the plea of the assessee was that the horses had to be withdrawn from the races since the certificates granted to them had been revoked by the Race Club Authorities, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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