9911796707
TMI Blog2011 (10) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... The first contention pertains to purchase of sand from Subash Chand of Rs. 6,64,052/- and Vishal Enterprises of Rs. 4,04,012/-. These purchases were not made on the single day but on different dates during the year in question. Payment was not made on a single day but on different dates. Payments were not made in cash but through bank transactions. Bank certificates were produced. The assessing officer had issued notice under Section 133(6) to Subash Chand but the notice was received back unserved with a remark "not known". The tribunal allowing the appeal of the assessee on this ground had recorded the following reasoning:- "We have considered the rival contentions and gone through the records carefully. The assessee has achieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed "Ready Mix Cement" (RMC for short). Learned counsel for the appellant/Revenue in this context has drawn our attention to the following observations made in the assessment order, which for the sake of convenience are reproduced below:- "The assessee company is engaged in civil construction contracts, sale and contracts for laying of Ready Mix Concrete (RMC) and vehicle and equipment hiring." 5. Learned counsel for the Revenue has also drawn our attention to the findings recorded by the CIT (Appeals) who has referred to the decision in Commissioner of Income Tax vs. N.C.Budharaja and Co. and Another, (1993) 204 ITR 412 (SC). 6. Learned counsel for the respondent-assessee however submits that tribunal by the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 3 to 5. We direct the Assessing Officer to allow additional depreciation on machinery used for the production of ready mixed concrete." 7. Learned counsel for the respondent assessee has drawn our attention to the stand of the assessee before the tribunal which is recorded in paragraph 4 of the impugned order. It is recorded that the respondent- assessee had pleaded that they had supplied RMC to buyers and delivered the same to the buyers? site of construction. 8. After hearing the counsel for the parties the following substantial question of law is framed:- "Whether the tribunal is right in holding that the assessee is engaged in activity of manufacture of ready mix cement (RMC) and therefore is entitled to additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, the impugned findings in paragraph 7 are set aside with the direction to the tribunal to re-examine the matter on merits after deciding the question whether the RMC was sold to third parties, or was captively used/utilized. The respondent assessee will be entitled to additional depreciation on the machinery/equipment used for the said activity/purpose only if the RMC was sold to third parties. In case, RMC was partly sold and partly self utilized and the effect thereof on the question of additional depreciation will be also examined by the tribunal.
12. The question of law is accordingly answered partly in favour of the Revenue and against the respondent assessee. The appeal is disposed of.
No costs. X X X X Extracts X X X X X X X X Extracts X X X X
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