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TMI Blog2005 (1) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... V. BALASUBRAMANIAN., S. SARDAR ZACKRIA HUSSAIN. JUDGMENT The judgment of the court was delivered by N.V. Balasubramanian J.- The Income-tax Appellate Tribunal has referred the following question of law: "2. Whether, on the facts and circumstances of the case, the Tribunal was right in holding that the appellant was not entitled for the claim for extra-shift allowance on plant and machinery leased out when it is eligible for normal depreciation?" The matter pertains to the assessment year 1986-87. The assessee in this case engaged in the business of leasing and it claimed extra-shift allowance on the machinery leased out on the basis of the certificates issued by the lessees for the number of days the machinery worked on extra sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner had the jurisdiction under section 263 of the Act to revise the order of assessment, and on the merits it held that the assessee was not entitled to extra-shift allowance and the order of assessment was erroneous and prejudicial to the interests of the Revenue, as by allowing extra-shift depreciation more relief was given to the assessee than what was allowed to it and hence it held that the Commissioner had properly exercised his jurisdiction under section 263 of the Act and upheld the order of the Commissioner of Income-tax. The Tribunal, therefore, rejected the claim of the assessee. Aggrieved by the said order of the Tribunal, the assessee sought a reference under section 256(1) of the Act requesting the Tribunal to refer to this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of depreciation of machinery, plant, etc., owned by the assessee and used for the purpose of business or profession certain deduction will be admissible. The basic requirement for claiming this deduction as well is the same as for claiming the investment allowance dealt with by us in the foregoing paragraphs. Therefore, for those very reasons, we hold that the assessee is entitled for extra shift allowance as well." Learned counsel further submits that the decision of the Karnataka High Court was taken on appeal before the Supreme Court and the Supreme Court upheld the judgment of the Karnataka High Court in CIT v. Maharashtra Apex Corporation Ltd. [2002] 254 ITR 98. He, therefore, submitted that since the Supreme Court has affirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nery for lease, the assessee is entitled to claim extra-shift allowance. The decision of the Karnataka High Court was taken on appeal before the Supreme Court in CIT v. Maharashtra Apex Corporation Ltd. [2002] 254 ITR 98, and the Supreme Court has affirmed the judgment of the Karnataka High Court. It is not a case of rejection of the special leave petition preferred against the judgment of the Karnataka High Court, but it was the decision of the Supreme Court rendered in the appeal. Though learned senior standing counsel for the Income-tax Department would submit that a wrong concession was made before the Supreme Court, we are of the view that it is the decision of the Supreme Court and we are bound by the same. Hence, we hold that the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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