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TMI Blog2014 (2) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... r A.Y. 200203 without appreciating the fact that Amul parlours had sturdy structures due to use of concrete and tiles and cannot be said to be having useful life of one year only and further without appreciating the fact that the assessee itself had considered the same as capital asset for A.Y. 200203 and had claimed depreciation @10%? (ii) Whether the ITAT was justified in law in relying on the decision of Hon'ble Madras High Court in the case of CIT v. TVS Lean Logistics Ltd. (2007) 293 ITR 432(Mad) wherein the issue dealt with is regarding capital and revenue expenditure and not regarding issue of permanent/temporary structures leading to allowability of higher depreciation and hence the case is clearly distinguishable? (2) Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons: "6. We have heard the rival contentions and gone through the paper book. The lands belong to Auda/AMC. The land use right given by them temporary fur running Amul Parlour, on which the parlours were constructed by the assessee, which can be any time demolished by them. There is no right created by them as per the terms and conditions of the agreement. By following the decision of Hon'ble Madras High Court, the appellant did not have any right on the land of perpetually. Therefore, we reverse the order of the CIT(A). Accordingly the assessee's appeal on this ground in both years is allowed." 5. Having heard the learned counsel for the parties, we have prima facie doubt about such structure qualifying for 100% depreciation. The words u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and using them for storing selling their products from the booth in the garden to the public. This permission shall not create any tenancy or proprietary rights or any other interest in the garden, which shall continue to be of the exclusive ownership, control and possession of the AUDA. 2. The second part shall submit a detailed plant construction of Milk Booth and maintenance of the garden and get the same approved by the AUDA. The second part shall keep in mind the existing facilities available and prepare a report of what further steps will be taken to maintain the garden in an aesthetic manner. 4. The second part shall be exclusively responsible for the complete construction of Milk Booth and maintenance of the garden and will bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of AUDA. 8. Such conditions would establish that the assessee had a limited right to use the land for the limited purpose and the limited period. We are informed that in the next year because of non renewal of the agreement, the assessee's structure was demolished. In this context, we may refer to the decision of the Supreme Court in case of Madras Auto Service (P) ltd.(supra). It was a case in which the assessee entered into a lease agreement with the lessor for a period of 39 years. On the leased land, new premises were constructed by the assessee at its own cost. The building belonged to the lessor and the assessee had the right to use it at a low rent. It was in this background the Supreme Court held that the assessee did not acquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such decisions and in particular looking to the nature of agreement and the fact that from subsequent year the structure itself was demolished, in our opinion, it would be futile to have closer scrutiny whether structure was purely temporary erection as referred to in Part I of Appendix I to the Income Tax Rules, 1962, qualifying for 100% deduction or not. This issue connecting to this question would be revenue neutral. 11. Coming to the second question, the facts are that the assessee during the previous year relevant to the assessment year 20022003 made donations to the tune of Rs.5.25 crores to a trust in Kutch Earthquake Relief Fund and claimed deduction under section 80G of the Income Tax Act. Subsequently, it was found that the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g relief to the victims of earthquake in Gujarat or which remains unutilised in terms of subsection (5C) of section 80G and not transferred to the Prime Minister's National Relief Fund on or before the 31st day of March, 2004 shall be deemed to be the income of the previous year and shall accordingly be charged to tax." 13. Subsection( 5) of section 80G pertains to donations to any institute or fund referred to in subclause( iv) of clause(a) of subsection( 2), only if it is established in India for a charitable purpose and if it fulfills the conditions mentioned therein. 14. Explanation 2 to section 80G provides interalia that the deduction to which the assessee is entitled in respect of any donation made to an institution or fund to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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