9911796707
TMI Blog2014 (3) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... essee was against the order dated 03.02.2005 passed by the Commissioner of Income Tax (Appeals)- III, (for short 'CIT(A)') in ITA No.77/AC12(3)/CIT (A)III/2004-05. The appeal before the CIT(A) was directed against the assessment order under Section 143(3) of the Income Tax Act, 1961 (for short 'the Act') dated 11.10.2004 passed by the Assistant Commissioner of Income Tax (for short 'the Assessing Officer'). 2. The revenue has raised the following substantial questions of law:- (i) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that under Section 80IB, deduction is allowable? (ii) Whether on the facts and in the circumstances of the case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of business by Wipro to the assessee was not through Amalgamation as contemplated by sub-section (12) of Section 80IB. In other words, the Assessing officer held that unless there is transfer of business through Amalgamation, the transferee, such as the assessee in the present case, is not entitled for deduction under Section 80IB. The order of the Assessing officer was carried in appeal by the assessee. The assessee relied upon the Board circular which says that deduction is relatable to the unit. Since the Board circular was issued in the context of old provision namely, section 84 of the Act, the CIT(A) did not give benefit to the assessee. The Tribunal, however, granted that benefit to the assessee and consequently, allowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and ending on the 31st day of March, 1995 or such further period as the Central Government may, by notification in the Official Gazettee, specify with reference to any particular undertaking; (ii) where it is an industrial undertaking being a small scale industrial undertaking, it begins to manufacture or produce articles or things or to operate its cold storage plant (not specified in subsection (4) or sub-section (5) at any time during the period beginning on the 1st day of April, 1995 and ending on the 31st day of March,[2002]. (12) Where any undertaking of an Indian company which is entitled to the deduction under this section is transferred, before the expiry of the period specified in this sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantial question of law is answered in favour of the assessee and against the revenue. 7. Insofar as second substantial question of law is concerned, what we find from the admitted facts is that the transferor-Wipro, transferred running unit/industry includes building, plant and machinery to the assessee and since the date of transfer, the assessee started running the unit/industrial undertaking as owners. The agreement to sale to that effect was executed by Wipro in favour of the assessee on 30.08.2000. It has come on record that thereafter, a lease agreement was executed by the KIADB in favour of the assessee on 30.12.2003 and then the sale deed on 26.05.2009. The execution of the lease agreement dated 30.12.2003 by the KIADB or the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formal deed of title may not have been executed and registered as contemplated by Transfer of Property Act, Registration Act, etc. 'Building owned by the assessee' - the expression as occurring in s.32(1) of the IT Act means the person who having acquired possession over the building in his own right uses the same for the purposes of the business or profession though a legal title has not been conveyed to him consistently with the requirements of laws such as Transfer of Property Act and Registration Act, etc., but nevertheless is entitled to hold the property to the exclusion of all others. 13. An overall view of the abovesaid authorities show that the very concept of depreciation suggests that the tax benefit on accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. In our opinion, having regard to the law laid down by the Supreme Court in this judgment, the Tribunal has rightly allowed the depreciation. The judgment relied upon by learned counsel for the revenue in Tamilnadu Civil Supplies Corporation Ltd. vs. Commissioner of Income Tax 1997(228) ITR 399 (Madras), is of no avail to the revenue, in view of the judgment of the Supreme Court in appeal against that order reported in (2001) 249 ITR 24(SC). The Supreme Court on the facts of that case, observed that it was not possible to reach the conclusion that the assessee had acquired domain over the Mill in question. Such is not the case insofar as the present assessee is concerned. There is lot of materials placed on record, which indicate t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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