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TMI Blog1986 (7) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in law and on the facts of the case in holding that the word 'business' used in section 32(1)(iv) of the Income-tax Act, 1961, would mean 'profession' also. 3. On the facts and in the circumstances of the case and in law the learned Commissioner of Income-tax (Appeals) ought to have held that for the purpose of interpretation of the provisions of section 32(1)(iv) of the Income-tax Act, 1961, the word 'business' would not include 'profession. 4. On the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals) ought to have upheld the order of the Income-tax Officer on the above issue. 5. It is, therefore, prayed that the order of the learned Commissioner of Income-tax (Appeals) may be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore him but after distinguishing the facts he proceeded to disallow the claim on account of initial depreciation. 6. In appeal the assessee repeated the arguments similar to the ones raised before the ITO. The decision of the Hon'ble Supreme Court in the case of Barendra Prasad Ray v. ITO [1981] 129 ITR 295 was also cited before the Commissioner (Appeals) for the proposition that 'business' included 'profession'. The Commissioner (Appeals) accepted the claim of the assessee by observing as under : "2. 5. I agree with the contentions of the learned representative of the appellant. In view of the Supreme Court's.judgement in the case of Barendra Prasad Ray v. ITO [1981] 129 ITR 295 (SC) quoted above, I am of the opinion that initial depre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l with a view to earning an income. We are of the view that in the context in which the expression 'business connection' is used in section 9(1) of the Act, there is no warrant for giving a restricted meaning to it excluding 'professional connections' from its scope." 10. This makesit amply clear thatthe dicision was rendered on the pe rticular facts of the case and was restricted to the situation prevailing therin. It was not meant to be applied to every case irre spective of facts. 11. As regards the point whether initial depreciation is allowable in the case of an assessee carrying on 'profession', we would like to point out the difference between section 32(1) and section 32(1)(iv). These read as under : "Depreciation. - (1) In re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITO nor the Commissioner (Appeals) have given a finding on facts whether the assessee satisfies the basic conditions laid down in section 32(1)(iv) to entitle him to the benefit thereof. We are presently not concerned with this aspect of the matter as we are deciding the appeal on the legal issue.. 13. We accordingly hold that the decision of the Hon'ble Supreme Court in Barendra Prasad Ray's case relied upon by the respondent does not apply to the facts of his case. As a result, that portion of the Commissioner (Appeals)'s order allowing deduction under section 32(1)(iv) to the assessee on the basis of the same decision stands to be reversed. It is accordingly so done. 14. As a result, the appeal of the revenue succeeds. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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