9911796707
TMI Blog2009 (11) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... taken the status of the assessee as AOP on protective basis by relying on the order for 1995-96, 96-97 97-98. The Learned Commissioner of Income Tax(Appeals) has erred in law and on facts of the case in not following the order for the earlier year where the said issue has been held in favour of the assessee by previous Learned Commissioner of Income Tax(Appeals). 3. The Learned Authorised Representative of the Assessee submitted that the issue is covered in favour of the assessee by order dated 23.05.2009 of the Tribunal for Assessment Year 1995-96 in ITA No.1953/Ahd/2001 and following the same, the ground of appeal should be allowed. 4. The Learned Departmental Representative agreed with the above submissions of the Learned Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue and the assessee has valid reasons to be aggrieved by such an order. Hence, the assessee can validly file appeal against such order which should be decided by the appellate authority on merits. In the instant case, in our considered view, the Learned Commissioner of Income Tax(Appeals) was not justified in not adjudicating the issue on merits and dismissing the appeal of the assessee. We therefore, set aside the order of the Learned Commissioner of Income Tax(Appeals) and restore the matter back to the file of the Learned Commissioner of Income Tax(Appeals) for adjudication afresh on merits after allowing reasonable opportunity of hearing to both the parties in accordance with the law. Thus, this ground of appeal of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (i) MCL MMCL will do their business individually but for its business, MCL would require substantial amount of funds which will be provided by MMCL. (ii) MMCL will provide funds amounting to ₹ 5 Crores to MCL which will carry notational interest @ of 15% per annum. Any mutual transaction of finance between MCL MMCL will be charged at notional interest @ of 18% . all the services provided by MCL to MMCL would be billed at notional market rate. (iii) MCL MMCL both agreed to share their profits equally in this joint venture. (iv) The books of account shall be closed on 31st March of every year and the profits shall be ascertained as on 31st March of every year. (v) MCL will do the business of Merchant Banking and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basic condition of ownership of assets for eligibility to depreciation. Section 32 uses the expression owned wholly or partly by the assessee and used for the purposes of the business or profession . Unless both these conditions of ownership by the assessee and user in the business are satisfied, no deduction under section 32 can be allowed. Since, the ownership over the assets does not vest wholly or partly in the appellant AOP, it is not entitled to depreciation . As held in the case of Tamilnadu Civil Supplies Corporation Ltd. Vs. CIT 249 ITR 214 (SC), where a rice mill was vested in the assessee by Government orders but the sale deed was not executed in the assessee s favour, it was not legally owned by the assessee so as to make it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplain how the issue involved in this ground of appeal is consequential to the decision in respect of ground no.1 of the appeal. We find that in this ground of appeal, the issue is allowance of depreciation in respect of assets of which the Joint Venture is not the owner of the assets. The Learned Commissioner of Income Tax(Appeals) held that Joint Venture, even if treated as an AOP is not entitled for depreciation as assets were owned by member companies and not the alleged joint venture. We find that no material was brought on record before us, to controvert the above finding of the Learned Commissioner of Income Tax(Appeals). We therefore, do not find any good reason to interfere with the order of Learned Commissioner of Income Tax(Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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