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TMI Blog1986 (1) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, as per submissions of the learned counsel for the assessee, Mr. D.K. Gupta, by earlier decision of the Tribunal in the case of Bharat Cold Storage v. ITO [1983] 14 TLR 311, (Chd.), as, according to him, absolutely similar are the facts, similar is the deed of dissolution and similar is the partnership deed. 3. But the learned departmental representative, Mr. M.P. Singh, did not agree that the issue is covered. He submitted that there is another decision of the Tribunal which goes against the assessee and he would like to rely on the same. He submitted that earlier, firm had not only machinery and building but had land also. It was a firm constituted of close relations and the value of the land was not revalued. He submitted that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has not challenged the same by way of appeals. It was, therefore, urged that the conduct of the assessee showed that it was not a case of dissolution but a case of change in the constitution of the firm as contemplated under section 187 of the Income-tax Act. He also urged that assuming for a moment that it was not a case of dissolution of the firm, as contended by the learned counsel for the assessee, even then, one assessment had to be made for both the periods, taking it as change in the constitution of the firm, in view of the special provisions contained in section 187. He, therefore. urged that this being the position, depreciation was to be allowed on the WDV in the case of the old firm, taking into consideration the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he depreciation has to be adopted as in the case of the firm before reconstitution and, therefore, the depreciation has to be allowed at the WDV as in the case of the firm, taking into consideration Explanation 4 below section 43 of Income-tax Act." 5. Before we deal with the two High Courts decisions, on which reliance was placed by the learned departmental representative, it is better, we give a brief background of the facts which would also indicate as to how close is the instant case with that of the case of Bharat Cold Storage in which our decision has gone in favour of the assessee and which also supports the contention of the learned counsel for the assessee in the appeal under consideration. There was a firm styled as Daryadittama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , after making reference to the IAC as required in Explanation 3 to section 43(1). In spite of the fact that the Tribunal's decision in that of Bharat Cold Storage's case, on which reliance is placed by the learned counsel for the assessee now, was placed before the ITO, but the ITO observing that the actual cost of the assets has to be what was in the hands of the previous firm, after referring the matter, got approval of the IAC and rejected the claim of the assessee on enhanced value. When the assessee felt aggrieved by the said decision of the ITO, he came before the AAC who, in a very flowery language, contested the said assessment and quoted a number of other decisions, in some of which the Tribunal and in others the revenue itself ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack to the reputation of the business and partners." The first three clauses of the aid dissolution deed, read as under : "1. That the firm as now constituted is dissolved from today for all intents and purposes and no one partner shall be lawful to run any business in future in this name and style of the firm. 2. That the accounts of the firm were scrutinised and checked and net profit as revealed at Rs. 1,389 was found correct and accepted by the parties to this deed. 3. That all lock, stock and barrel of the firm consisting of factory, machinery, equipped with tubewell, engines and complete husking and shelling machinery, factory, land and building comprising of sheller room, godowns, barracks, shops, staff and store rooms, machi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently also paid of in cash, and he was prepared to produce the accounts of such payments. It was at length that we had dealt with the Punjab and Haryana High Court decision in the case of Nandlal Sohanlal v. CIT [1977] 110 ITR 170 (FB) and in the case of Bharat Cold Storage and had observed that observations, extracted and placed in the said order, support the contentions of the assessee and not of the revenue. According to us, it was very incorrect on the part of the learned departmental representative to have said that on identical issue of depreciation, this Bench had taken a separate view in the case of Markanda Rice Mills. Unfortunately, though decision in the case of Bharat Cold Storage was not cited by the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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