9911796707
TMI Blog2008 (3) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... in ITA No.3032/D/2004 relevant for the assessment year 2001-02, vide which the appeal filed by the Assessee was dismissed. 2. The brief facts of this case are that the Assessee company during the assessment year in question has entered into an agreement with Moet's Kababs by virtue of which, it transferred 85% of its daily restaurant and bar sales to Moet's Kababs in lieu of materials and labour supplied by it. No written agreement to this effect has been executed between the parties. The Assessee's stand was that it was prudent business arrangement. 3. The Assessing Officer in his assessment order has observed that the Assessee did not run the business of bar and restaurant during the year; that it had made no purchases of raw mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal filed by the Revenue holding that Assessing Officer rightly invoked the provisions of Section 38(2) of the Act, since the Assessee did not use its fixed assets exclusively for its own business purposes. Dissatisfied with the order passed by the Tribunal, the Assessee has filed the present appeal. 6. It has been contended by learned counsel for the Petitioner that the order passed by the Tribunal is wrong in law since the assets are owned by the Assessee and have been utilized for the purpose of business. M/s Moet's Kababs acted as a caterer for supplying and servicing all the food without bringing any assets including furniture fixture and the assets of the Assessee had been used in carrying out the business activity of operating b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortionate part thereof which the Assessing Officer may determine, having regard to the user of such building, machinery, plant or furniture for the purposes of the business or profession." 8. Section 32(1) of the Act thus provides that where the asset is owned wholly or partly, by the Assessee and used for the purposes of Assessee's business, deduction in respect of depreciation, thereof shall be allowed, as provided under Section 32(1)(ii). 9. Whereas, Section 38(2) of the Act expressly provides that deduction under Section 32(1)(ii) shall be restricted, where the asset is not exclusively used for the Assessee's business purposes, to a fair proportionate part thereof, as laid down in Section 38(2) of the Act. 10. It is the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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