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TMI Blog2005 (6) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether the scaffolding materials have been really leased out or have been sold. In fact, it was nobody's case before any of the authorities that there was any disguised sale of scaffolding materials. A perusal of the entire record shows that the only dispute before the authorities related to the rate of depreciation i.e., as to whether it was 33 1/3 per cent, or 100 per cent. The Tribunal had not even put the assessee on notice about the above observation at the time of hearing, and no opportunity was given to the assessee about the point raised suo motu by the Tribunal. In, view of the above, we set aside the impugned order of the Tribunal and hold that the scaffolding materials are entitled to 100 per cent, depreciation treating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that each of the scaffolding material constituted a "plant" used for the purpose of business. The Assessing Officer, however, allowed depreciation only at the rate of 33 1/3 per cent. The Assessing Officer held that the scaffolding material was an integrated unit and hence could not be bifurcated into several pieces of Rs. 5,000 each in value. Accordingly, he restricted the depreciation claim to the rate of 33 1/3 per cent, on the plant. In appeal the Commissioner of Income-tax (Appeals) confirmed the order of the Assessing Officer restricting the claim of depreciation to 33 1/3 per cent, under section 32(1)(ii) of the Income-tax Act (in short "the Act"). The Commissioner of Income-tax (Appeals) observed: "The Madras High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmed." Both the assessee as well as the Department filed appeals against the order of the Commissioner of Income-tax (Appeals), and they have been disposed of by the judgment of the Tribunal dated April 2, 2002. In this case we are not concerned with the appeal filed by the Department before the Tribunal. We are only concerned with the appeal filed by the assessee. By the order dated April 2, 2002, the Tribunal disposed of the assessee's appeal, but without considering its claim for allowing 100 per cent, depreciation instead of 33 1/3 per cent. Hence the assessee filed a rectification petition under section 254(2) of the Income-tax Act before the Tribunal, in which it was pleaded in paragraph 6: "It is further submitted that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Avas Nigam Ltd. v. CIT [1998] 229 ITR 776 (All)." Learned counsel for the assessee has submitted before us that while disposing of the rectification petition the Tribunal went beyond its brief by dealing with extraneous aspects of the issue of depreciation, which has the effect of enhancement of the assessment made on the assessee. Learned counsel also submitted that the observation of the Tribunal in paragraph 3 of its order dated November 18, 2002, that the transaction "though called a lease appears to be a sale" was nobody's case. We agree with this submission. It may be mentioned that the assessee claimed that the scaffolding materials were given on lease to M/s. Bhasin Associates Limited treating it as a plant and the assessee clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgical instruments are treated as "plant" in the definition in section 43(3) of the Act. The word "plant" would therefore include any article or object, fixed or movable, used by a businessman for carrying on his business vide CIT v. Taj Mahal Hotel [1971] 82 ITR 44 (SC), Sundaram Motors P. Ltd. v. CIT [1969] 71 ITR 587 (Mad), etc. Further, the word "plant" would mean and include apparatus used by a businessman for carrying on his business, and it is not confined to an apparatus used for mechanical operations or processes or industrial business vide CIT v. Parke Davis (India) Ltd. [1995] 214 ITR 587 (Bom). In CIT v. Parke Davis (India) Ltd. [1995] 214 ITR 587 (Bom) it has been held that fans installed in the office premises of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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