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TMI Blog1990 (11) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the capital asset of the assessee subject to depreciation ? 2. Whether, on the facts and in the circumstances of the case, the jeeps hired to the Congress party could be said to constitute the capital asset of the assessee subject to depreciation ? 3. Whether, on the facts and in the circumstances of the case, the assessee was entitled to deduction of expenses claimed in connection with the hiring of the jeeps ? 4. Whether, on the facts and in the circumstances of the case, the loss of Rs. 9,425, was allowable by way of balancing charge in respect of the assessment year 1968-69 ?" The Revenue had asked two more questions to be referred, which was declined. They read: " 1. Whether there is material on record justifying the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned that the hiring of jeeps was a normal business activity of the assessee, but that the said amount cannot be treated as a business loss. The operative portion of the order clearly says that this amount was disallowed; see para 14. Be that as it may, we are not concerned with the said aspect as it is not referred to us. For the assessment year 1968-69, a loss of Rs. 9,425 was claimed by the assessee on identical grounds. This was disallowed by the Income-tax Officer, but allowed by the Tribunal, though for the preceding year, an identical claim was disallowed. On a reading of the Tribunal's order, we are left with a very unsatisfactory feeling. The finding that the hiring of jeeps was a normal business activity of the assessee is very u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the jeeps was a normal business activity of the assessee has become final, it can be said that the jeeps constituted the capital asset of the assessee. Though the assessee did claim that the jeeps constituted its stock-in-trade, yet, having regard to the aforesaid finding, it would be more consistent to hold that the jeeps constituted the capital asset of the company. If so, the assessee is entitled to depreciation on the said jeeps. It is a well-settled proposition that where an assessee claims a particular benefit under a particular provision, the benefit cannot be denied to him merely because that particular provision is not relevant, if it is found that he is entitled to the said benefit under a different provision. In the instant c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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