9911796707
TMI Blog2002 (5) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... relate to the year of account and therefore the assessee made a provision therefor, notwithstanding that the bills were not received. He drew our attention to the fact that subsequently the assessee had made payments in respect of the aforesaid provision and in the year of payment, no deduction has been claimed. Our attention was drawn to Exhibit-2 of the paperbook, where the details of the payments made subsequently have been given. Taking note of the submissions of the learned counsel for the assessee and having regard to the fact that the expenses were not claimed in the next year and also having regard to the fact that these are usual expenses which are not unforeseen and for which the assessee is entitled to make a provision, we set aside the orders of the departmental authorities and restore the same to the file of the Assessing Officer, who may verify whether the expenses pertain to these years from the details furnished by the assessee, for which adequate opportunity shall be given, and if they in fact pertain to this year, they may be allowed as a deduction. Subject to these directions, the matter is restored to the file of the Assessing Officer. 3. We may now take up gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Rs. 5,17,128. 2. This issue stands covered against the assessee and in favour of the Revenue by the judgment of the Hon'ble Supreme Court in the case of CIT v. Venkateshwara Hatcheries (P.) Ltd. [1999] 237 ITR 174 and CIT v. Anand Theatres [2000] 244 ITR 192 (SC). Accordingly, we decline to interfere and dismiss the ground." 6. The learned counsel for the assessee contended that the aforesaid order of the Tribunal should not be followed because in the said order, there is no discussion about the nature and functions of the poultry sheds. According to him, the Tribunal has merely followed the judgment of the Supreme Court in the case of CIT v. Venkateshwara Hatcheries (P.) Ltd. [1999] 237 ITR 174 without appreciating the fact that in the said judgment, the issue related to the claim of investment allowance under section 32A and the claim was rejected by the Supreme Court on the ground that there was no manufacturing or production of articles or things in the case of a poultry farm. The present issue, it was pointed out, was different. It related to the question of depreciation and what is required to be examined is whether the poultry sheds fulfil the functional test so tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Dr. P.V. Rao, Director of Research (Veterinary), Andhra Pradesh Agricultural University setting out the structural, constructional and functional aspects of the poultry sheds and has opined that they cannot be considered as mere buildings and should be considered as plant. Reliance was placed on the order of the Hyderabad Bench of the Tribunal in the case of Asstt. CIT v. Bhagyalakshmi Hatcheries, dated 30-1-2002, wherein also the special design, construction and functions of the poultry sheds have been considered elaborately and it has been held that the poultry sheds have to be regarded as plant and not as building. Reliance was also placed on the order of the Hyderabad Tribunal dated April, 1992 in the same case where the opinion of Dr. P.V. Rao has been noticed and the nature of functions of poultry sheds have been examined in great detail by the Tribunal and it has been finally held that the poultry sheds answered positively to the functional test and must be considered as an apparatus or tool of the assessee and not merely as a place from which the business is carried on. 8. We were also taken through the opinion expressed by Dr. P.V. Rao in the case of Bhagyalakshmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and the Tribunal was not bound by the same. With reference to the judgment of the Supreme Court in the case of Karnataka Power Corpn., he pointed out that the requirement is that the building should serve the technical needs of the business if it is to be considered as plant and since there was a finding by the Tribunal in the case of Karnataka Power Corpn. that this requirement was met, the Supreme Court held that the building was a plant. According to Mr. Rajkumar no materials in the present case, to justify such a conclusion. On the basis of these submissions, he contended that the view taken by the Pune Bench in the case of Baramati Agro should not be departed from. 11. In his brief reply, the learned counsel for the assessee reiterated his earlier submissions and pointed out that the various aspects of the question have not been considered by the Pune Bench in detail and in the, light of the Supreme Court judgment in Karnataka Power Corpn. the departure from the view is justified. 12. We have carefully considered the rival contentions. As regards the question whether the later Tribunal can make a departure from the view taken by the earlier Tribunal, the position is wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in Chandigarh and Hyderabad wherein identical question had been decided in favour of the view that the poultry sheds are plant. These orders of the Tribunal do not appear to have been placed before the Pune Bench, The opinion of Dr. P.V. Rao which has been placed before us in the paperbook and which has formed the basis of the orders of the Hyderabad and Chandigarh Benches of the Tribunal does not appear to have been placed before the Pune Bench and the Bench was deprived of the benefit of these orders as well as the opinion of Dr. Rao. When all the facts relating to the claim have been placed before us and it has also been pointed out that there is a change in the legal position in the sense that the Supreme Court itself in Karnataka Power Corpn.'s case has explained the earlier decision in Anand Theatres and has given a go-by to the concept that a building can never be considered as a plant and has sought to restrict the application of Anand Theatre's case to cases of hotels and theatres, we would think that the matter has to be looked at afresh. We are not to be understood as criticising, in any manner, the order of the Tribunal, Pune Bench in the case of Baramati A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) Provision of proper light and air circulation. (c) Proper and scientific feeding arrangements. (d) Proper watering system. (e) Proper arrangement for collection of manure and dropping. (f) Proper arrangement for medication and vaccination. (g) Provision of right environment conducive for laying eggs. (h) Proper arrangement for the collection of eggs. (i) Reducing the incidence of mortality to the minimum. He has certified that each of the three types of sheds has its special features so as to facilitate the operations carried on therein to achieve maximum efficiency, minimising the incidence of diseases and mortality. He has further stated that the egg laying capacity of the bird is materially enhanced because of the environmental facilities, construction and design of the sheds. 15. The opinion of the expert has not been contradicted on behalf of the Revenue on the basis of any contra-opinion or material. The opinion has been accepted and acted upon by the Hyderabad Bench of the Tribunal in the case of Bhagyalakshmi Hatcheries vide order dated April, 1992. The matter is pending before the Hon'ble Andhra Pradesh High Court in the case of Bhagyalakshmi Hatche ..... X X X X Extracts X X X X X X X X Extracts X X X X
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