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TMI Blog2003 (5) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... al provision which relates to depreciation will not prevail over this specific provision. Therefore, the depreciation is otherwise also not allowable on the guest house maintained by the assessee. - In the result, we answer the question in the negative, i.e., in favour of the Revenue - - - - - Dated:- 13-5-2003 - Judge(s) : Y. R. MEENA., MRS. GYAN SUDHA MISRA. JUDGMENT On an application under section 256(1) of the Income-tax Act, 1961, the Tribunal has referred the following question for the opinion of this court: "Whether the Income-tax Appellate Tribunal is legally justified in allowing depreciation on guest house ignoring the specific provisions of section 37(4) prohibiting allowance of depreciation on guest house?" The rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for depreciation in the case of guest house. He also relied on the decision of the Madras High Court in CIT v. Mathurantakam Co-operative Sugar Mills Ltd. [2000] 241 ITR 817. Mr. Kothari, learned counsel for the assessee, submits that section 37(4) has no application as it is just a proviso to sub-section (1) and sub-section (3) of section 37. He submits that once depreciation is allowable under section 32, that right of the assessee under section 32 should not be denied, invoking the provisions of sub-section (4) of section 37. He placed reliance on the decision of the Bombay High Court in Century Spinning and Manufacturing Co. Ltd. v. CIT [1991] 189 ITR 660. The facts are not in dispute that there is a finding of the Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that the aggregate of the expenditure referred to in clause (i) and the amount of any depreciation referred to in clause (ii) shall, for the purposes of this sub-section, be reduced by the amount, if any, received from persons using the guest house: Provided further that nothing in this sub-section shall apply in relation to any guest house maintained as a holiday home if such guest house- (a) is maintained by an assessee who has throughout the previous year employed not less than one hundred whole-time employees in a business or profession carried on by him; and (b) is intended for the exclusive use of such employees while on leave. Explanation. -For the purposes of this sub-section, - (i) residential accommodation in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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