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TMI Blog2007 (3) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... home of the assessee could be treated as a hotel for the purposes of depreciation ?" 2. The reference relates to the assessment year 1989-90. 3. Briefly stated, the facts giving rise to the present reference are as follow: 4. The applicant's source of income are salary and profession. She is running a nursing home, called "Krishna Medical Centre" at Lucknow. The applicant claimed depreciation on the building of the nursing home at the rate of 20 per cent., the rate applicable to a hotel. The assessee's claim before the Assessing Officer was that the nursing home provided lodging to the patients on daily rent and, therefore, it was like a hotel. The Assessing Officer rejected the claim holding that the nursing home could not be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial surgical beds, the first appellate authority allowed depreciation applicable to plant. That having been allowed by the first appellate authority, whatever remained of the nursing home, was nothing but rooms of bricks and stones, which could not be called, by any stretch of imagination, to be a plant. The Tribunal also held that the ratio laid down by the apex court in the case of Addl. CIT v. Gurjargravures P. Ltd. [1978] 111 ITR 1, was also applicable and, therefore, at that stage it was considered to be in the interest of justice not to allow the assessee to take up a new ground of the entire nursing home being treated as a plant. The assessee's appeal was, therefore, dismissed. 5. We have heard Sri Krishna Agrawal, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority, no such claim was made. The claim for depreciation applicable to plant was only confined to surgical beds and equipments installed in the operation theatre and also surgical equipment necessary for the purpose of profession, which claim has been allowed by the first appellate authority. The claim for depreciation, as is applicable to plant in respect of the nursing home building, was, for the first time, made before the Tribunal as by that time the decision of the Karnataka High Court in the case of Dr. B. Venkata Rao [1993] 202 ITR 303 has come. The Tribunal has rightly declined to entertain the said plea by relying upon the decision of the apex court in the case of Gurjargravures P. Ltd. [1978] 111 ITR 1. According to Sri Mahajan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reating them to be plant. However, in appeal filed before the Tribunal, a plea was raised that the nursing home is a plant and, therefore, the depreciation at the rate applicable to it should be allowed. This plea was raised for the first time, which had not been accepted by the Tribunal relying upon the decision of the apex court in the case of Gurjargravures P. Ltd. [1978] 111 ITR 1. As no such claim was made before the assessing authority as also before the Commissioner of Income-tax (Appeals), we are of the considered opinion that the Tribunal was perfectly justified to refuse to entertain the claim regarding depreciation on the nursing home building at the rate which is applicable to a plant. In the case of Dr. B. Venkata Rao [2000] 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an operation theatre. In the circumstance, we think that the finding of the High Court should be accepted." 10. Applying the principle laid down in the aforesaid case to the facts of the present case, we find that there is no finding recorded by any of the authorities including the Tribunal, that the nursing home building was equipped to enable the assessee to carry on the business of the nursing home therein. In the absence of any such finding, we cannot accept the claim made by the applicant. The decision in the case of Jute Corporation of India Ltd. [1991] 187 ITR 688 (SC) relied upon by learned counsel would be not applicable. In the aforesaid case, the apex court has considered its earlier decision in the case of Gurjargravures P. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be acting within his jurisdiction in considering the question so raised in all its aspects. Of course while permitting the assessee to raise an additional ground, the Appellate Assistant Commissioner should exercise his discretion in accordance with law and reason. He must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. The satisfaction of the Appellate Assistant Commissioner depends upon the facts and circumstances of each case and no rigid principles or any hard and fast rule can be laid down for this purpose." 11. It has been held by the apex court that while permitting the assessee to raise an additional ground, the appellate authority should exercise its dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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