9911796707
TMI Blog2008 (3) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 material and had not deployed any man power to run the bar and the restaurant; that it was Moet's who did everything; that even the bar licence fee had not been paid by the Assessee, without which the bar could not be legally run; that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 bar and restaurant etc. It is further contended that all the licences, registrations were obtained by the Assessee and the claim of depreciation has been disallowed even on bar sale despite finding of fact that undisputedly the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides 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 the Assessee that Moet's was taking away 85% of the total receipts from the bar as well as from the restaurant of the Assessee. Thus, it is clear that the fixed assets of the Assessee were not being utilized by him exclusivel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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