2010 (10) TMI 561

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..... mesh Raheja for the Assessee ORDER Shamim Yahya, Accountant Member:- 1. This appeal by the Revenue is directed against the order of the learned CIT(A) dt. 16th Oct., 2006 pertaining to asst. yr. 2003-04. 2. The issue raised is that learned CIT(A) erred in law in directing the AO to allow depreciation @ 10 per cent on plinths amounting to Rs. 21,77,922 as claimed by the assessee and disallowed by the AO. 3. The brief facts of the case are that the assessee constructed certain plinths and plinths and godowns as per the specifications and requirements of HAFED, specifically for the purpose of storing of foodgrains and these plinths and plinths and godowns were of no other use. These plinths and plinths and godowns were .....

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..... s. 6. We have heard both the counsel and perused the records. Learned counsel of the assessee submitted that the issue is covered in favour of the assessee by the several Tribunal decisions in assessee's own case as well as in group cases. We find that in assessee's own case in ITA No. 3932 and 3934/Del/2007 for asst. yrs. 2004-05 and 2005-06, the Tribunal, Delhi Bench vide order dt. 11th April, 2008 has held as under:- "We have carefully considered the facts of the case, gone through the assessment order as well as order of learned CIT(A) and also the arguments raised by the learned Departmental Representative. It has been clearly recorded in the order of learned CIT(A) that for asst. yr. 2003-04, such income was held by him to be .....

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..... g the ground on this behalf. Though the technical issue of res judicata does not apply to income-tax proceedings, however, Hon'ble Supreme Court has clearly held that unless there are new facts or change of facts, consistent view should not be deviated from. It has not been pleaded by learned Departmental Representative there is any change in facts. In view thereof, we are unable to accept the proposition of the Department. The issue about rental income being treated in the hands of the assessee as income from business, we see no reason to deviate from this finding. In view of the above, we uphold the order of the learned CIT(A) and dismiss the Revenue's appeal." 8. We have carefully considered the submissions. Facts in the present case .....

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