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TMI Blog2011 (8) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... al type of buildings and not eligible to depreciation @ 25% as plant, in view of amendment to section 43 (3) with effect from 1.4.2004? II. Whether the amended provisions of section 43 (3) brought into force with effect from the assessment year 2004-05 exclude the cold storage chambers from the ambit of 'plant'?" 3. The assessee is running a cold storage. It claimed depreciation on cold storage at the rate of 25% including cooling plant and the special chambers, lined with thermocol and which according to the assessee do not have any separate existence from the cooling plant. The authorities allowed depreciation at the rate of 10%. They made the addition of Rs.5,28,878/-. The Income Tax Appellate Tribunal opined that after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant. The building, which does not have separate existence, and is integral part of the plant, used for the purposes of business or profession, is not to be treated separately for depreciation. He submits that the ratio of the judgment of Calcutta High Court in Commissioner of Income Tax vs. Shree Gopikishan Industries Pvt. Ltd., (2003) 262 ITR 568, is entirely applicable to the facts of this case. The Calcutta High Court considered the distinction between plant and building in the case of cold storage. It was held relying upon the nature of the building of cold storage, which requires insulation, refrigeration and sanitary or other arrangement strictly in accordance with West Bengal Cold Storage (Licensing and Regulation) Act, 1966, the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings, which are used only for residential purposes, except hotel and boarding houses, depreciation is provided at 5% and for buildings other than those used mainly for residential purposes and not covered by sub-items (1) above and (3) below, the depreciation is provided at 10%. Item-3 provides buildings acquired on or after the 1st day of September, 2002 for installing machinery and plant forming part of water supply project or water treatment system, and which is put to use for the purpose of business of providing infrastructure facilities under clause (i) of Sub-S. (4) of Section 80-1A for which depreciation is provided at 100%. For plant and machinery in sub-category (iii) the depreciation is provided at 35%. The machinery and plant oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excluded the live stock or buildings or furniture and fittings from the plant. What was excluded in the context was building or furniture and fittings and not building of special nature, which does not have existence independent from the plant. In case of cold storage as it was found by Calcutta High Court, the building is required to be constructed for cooling chambers in a specific process and manner and without such specific process and manner a chamber cannot be commissioned, for which a licence is also required to be obtained. The whole building, which houses the chambers has to be constructed according to specifications in a particular manner. Without a thermocole a chamber cannot function independently and at the same time without t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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