DCIT, Firozabad v. M/s Om Glass Works (P) Ltd., Firozabad

ITA 446/AGR/2009 | 2006-2007
Pronouncement Date: 22-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 44620314 RSA 2009
Assessee PAN AAACO3490K
Bench Agra
Appeal Number ITA 446/AGR/2009
Duration Of Justice 2 month(s) 13 day(s)
Appellant DCIT, Firozabad
Respondent M/s Om Glass Works (P) Ltd., Firozabad
Appeal Type Income Tax Appeal
Pronouncement Date 22-01-2010
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted SMC
Tribunal Order Date 22-01-2010
Date Of Final Hearing 18-01-2010
Next Hearing Date 18-01-2010
Assessment Year 2006-2007
Appeal Filed On 09-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH SMC AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER ITA NO.446/AGR/2009 ASST. YEAR: 2006-07 DY. C.I.T. CIRCLE-5 VS. M/S. OM GLASS WORKS ( P) LTD. FIROZABAD. HANUMAN GANJ FIROZABAD (U.P.). (PAN : AAACO 3490 K) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.R. SAHU JR. D.R. RESPONDENT BY : SHRI MAHESH AGARWAL C.A. ORDER THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) DATED 31.08.2009 BY TAKING THE FOLLOWING EFFECTIVE GROUND S OF APPEAL :- (1) THAT THE LEARNED CIT(A)-II AGRA HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADHOC ADDITION OF RS.7 00 000/- MADE BY THE ADDITION BY IGNORING THE FACTS DISCUSSED IN THE BODY OF ASSESSMENT ORDER. (2) THAT THE LEARNED CIT(A)-II AGRA HAS ERRED IN L AW AND ON FACTS IN DIRECTING TO DELETE THE DISALLOWANCE OF RS.2 77 052/- (2 71 0 52 + 6 000) MADE BY THE AO UNDER THE HEAD DEPRECIATION TO THE DIRECTORS RESID ENCE AND THE PROJECTOR INSTALLED THEREIN BY IGNORING THE FACTS DISCUSSED I N THE BODY OF ASSESSMENT ORDER. 2. THE BRIEF FACTS OF THE CASE IN REGARD TO GROUND NO.1 ARE THAT THE A.O. DURING THE COURSE OF ASSESSMENT FOUND THAT THE ASSESSEE HAS DEBITED AN E XPENDITURE OF RS.55 38 591/- UNDER THE HEAD FURNACE REPAIRS. IT WAS ALSO NOTED THAT ASSETS AG GREGATING TO RS.17 84 592/- HAS BEEN DEBITED ON ACCOUNT OF PURCHASE OF IRON AND STEEL. WHILE TH E TOTAL DEBITS IN THE ACCOUNT OF FURNACE REPAIR AND MAINTENANCE WERE RS.68 13 132/- INCLUDING THE O PENING BALANCE OF RS.8 78 278/-. AN AMOUNT OF RS.1 27 74 541/- WAS CREDITED ON ACCOUNT OF CONVERT CREDIT AND ON ACCOUNT OF TRANSFER TO STOCK ACCOUNT. THUS THE NET AMOUNT OF MATERIAL PURCHASED AND USED DURING THE YEAR WAS 2 RS.46 68 334/-. ON THAT BASIS THE A.O. NOTED THAT THE TOTAL EXPENDITURE ON CONSTRUCTION OF THE FURNACE OF THE CAPACITY OF 30 MT SINCE WAS RS.37 88 304/- THE EXPENDITURE DEBITED UNDER THE HEAD FURNACE REPAIR IS NOT JUSTIFIED AND ON HIGHER SIDE. THEREFORE THE A.O. DISALLOWED A SUM OF RS.7 00 000/- ON ACCOUNT OF UNVERIFIABLE AND UNREAS ONABLE EXPENDITURE ON PURCHASE OF IRON AND STEEL. WHEN THE MATTER WENT BEFORE THE CITA(A) TH E CIT(A) DELETED THE DISALLOWANCE AS PER THE OBSERVATIONS GIVEN UNDER PARA NO.2.3 OF HIS ORDER. 3. THE LD. D.R. BEFORE ME VEHEMENTLY CONTENDED THAT THE REPAIRS EXPENSES INCURRED BY THE ASSESSEE WERE ON HIGHER SIDE BECAUSE THE COST OF NE W FURNACE INCURRED BY THE ASSESSEE DURING THE YEAR WAS LESS THAN THE REPAIR EXPENSES INCURRED DUR ING THE YEAR. THE ASSESSEE COULD NOT SATISFY THE A.O. AND THEREFORE THE LUMPSUM DISALLOWANCE W AS MADE. HE SUPPORTED THE ORDER OF THE A.O. 4. THE LD. A.R. ON THE OTHER HAND RELIED ON THE O RDER OF THE CIT(A) AND REITERATED THE SUBMISSIONS MADE BEFORE THE CIT(A) WHICH ARE REPROD UCED IN PARA 2.2 OF THE CIT (A) S ORDER. 5. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND PERUSED THE MATERIAL ON RECORD. I NOTED THAT THE A.O. HAS NOT POINTED OUT ANY SPECIFI C EXPENDITURE WHICH IS NOT VERIFIABLE AND WHICH HAS NOT BEEN INCURRED BY THE ASSESSEE FOR THE PURPOSE OF BUSINESS. ADDITION HAS BEEN MADE ON ADHOC BASIS BY OBSERVING THAT THE FURNACE R EPAIR EXPENSES ARE MORE THAN THE COST OF THE NEW FURNACES. HE HAS NOT DENIED THE SUBMISSIONS OF THE ASSESSEE MADE BEFORE HIM THAT THE COST OF THE OLD TANK FURNACE AND POT WAS RS.1.2 CRORES A S INDICATED IN THE SCHEDULE OF FIXED ASSETS UNDER THE GROSS BLOCK OF FURNACE WHEN THERE WAS ONL Y ONE TANK AND ONE POT FURNACE IN THE FACTORY. THE CONSUMPTION OF THE COST OF IRON AND S TEEL INCURRED IN REPAIR WORK AS COMPARED WITH 3 THE TOTAL COST OF THE OLD FURNACE IS NEARLY 15% WHE REAS THE CONSUMPTION OF IRON AND STEEL IN THE NEWLY CONSTRUCTED AUTOMATIC FURNACE IS ON THE HIGHE R SIDE. EVEN I AM OF THE OPINION THAT IF THE EXPENDITURE HAS BEEN INCURRED FOR THE PURPOSES OF B USINESS AND IS DULY SUPPORTED IT CANNOT BE DISALLOWED UNLESS AND UNTIL IT IS PROVED THAT THE A SSESSEE HAS NOT INCURRED THE EXPENDITURE NO ADHOC DISALLOWANCE CAN BE MADE WITHOUT POINTING OUT ANY SPECIFIC EXPENDITURE WHICH IS NOT INCURRED FOR THE PURPOSE OF BUSINESS. THE EXPENDIT URE INCURRED ON THE REPAIRS HAS TO BE ALLOWED UNDER SECTION 31 OF THE INCOME TAX ACT 1961. I T HEREFORE CONFIRM THE ORDER OF THE CIT(A) DELETING THE DISALLOWANCE AS IN MY OPINION THERE IS NO GOOD REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). THUS THIS GROUND IS DISMISSED. 6. THE SECOND GROUND RELATES TO THE DISALLOWANCE OF THE DEPRECIATION AMOUNTING TO RS.2 77 052/- IN RESPECT OF BUILDING GIVEN TO THE D IRECTOR OF THE COMPANY FOR HIS RESIDENCE AND DEPRECIATION ON PROJECTOR AMOUNTING TO RS.6 000/- I NSTALLED IN THE DIRECTORS RESIDENCE. 7. THE BRIEF FACTS OF THE CASE ARE THAT THE A.O. NO TED THAT THE ASSESSEE HAS CLAIMED DEPRECIATION IN RESPECT OF THE RESIDENCE PROVIDED T O COMPANYS DIRECTOR AND ALSO FOR THE PROJECTOR INSTALLED IN THE RESIDENCE PROVIDED TO TH E DIRECTOR. THE A.O. WAS OF THE VIEW THAT THE RESIDENCE PROVIDED TO THE DIRECTOR IS NOT USED FOR THE PURPOSE OF THE BUSINESS OF THE ASSESSEE AND SIMILARLY THE PROJECTOR PROVIDED TO THE RESIDENCE O F THE DIRECTOR WAS NOT USED FOR THE PURPOSE OF BUSINESS. ACCORDINGLY HE DISALLOWED THE DEPRECIAT ION. WHEN THE MATTER WENT BEFORE THE CIT(A) THE CIT(A) DELETED THE DISALLOWANCE RELYING ON THE CBDT LETTER NO.F10/97/63-IT(A-1) DATED 29.02.1964 AS WELL AS ON THE DECISION OF ITAT HYDERABAD BENCH IN THE CASE OF DCIT VS. NAGARJUNA INVESTMENT TRUST LIMITED 65 ITD 17 CIT VS. SHAW FINANCE (P) LTD 97 TAXMAN 435 4 (SC) ADDL. CIT VS. GENERAL INDUSTRIES CORPORATION 155 ITR 430 AND CIT VS. AHMEDABAD KAISER-E-HIND MILLS CO. LTD 128 ITR 486 (GUJ). 8. BEFORE ME THE LD. D.R. VEHEMENTLY CONTENDED THAT THE DEPRECIATION IS ALLOWABLE IF THE ASSET IS USED FOR THE PURPOSES OF BUSINESS. IF THE ASSET IS PARTLY USED FOR BUSINESS PURPOSES THE A.O. CAN DISALLOW THE DEPRECIATION UNDER SECTION 38 OF THE ACT. THE ONUS IS ON THE ASSESSEE TO PROVE THAT THE BUILDING AND PROJECTOR HAVE BEEN USE D FOR THE PURPOSES OF BUSINESS AND NOT FOR THE PERSONAL USE OF THE DIRECTOR. 9. LD. A.R. ON THE OTHER HAND REITERATED THE SUBM ISSIONS MADE BEFORE THE CIT(A) AND CONTENDED THAT THE DIRECTOR HAS BEEN PROVIDED WITH THE RESIDENCE IN THE FACTORY PREMISES AS HE HAS TO RESIDE THERE DUE TO THE VISIT OF THE FOREIGN BUYERS AND ACCORDINGLY DEPRECIATION HAS RIGHTLY BEEN CLAIMED. SECTION 32 OF THE INCOME-TAX ACT 19 61 CLEARLY LAYS DOWN THAT THE ASSET SHOULD BE OWNED WHOLLY OR PARTLY BY THE ASSESSEE AND USED F OR THE PURPOSES OF THE BUSINESS OR PROFESSION. ENTERTAINING THE PROSPECTIVE CUSTOMER AT THE RESIDE NCE CANNOT BE RELATED FOR CLAIM OF DEPRECIATION IN RESPECT OF THE RESIDENCE. SIMILAR ARGUMENTS WER E ADVANCED IN RESPECT OF THE DEPRECIATION CLAIMED FOR THE PROJECTOR. RELIANCE WAS PLACED ON THE CASE LAW AS HAS BEEN REFERRED TO BY THE CIT(A). RELIANCE WAS ALSO PLACED ON THE BOARD LETT ER NO.F10/97/63-IT-(A-I) DATED 29.02.1964. 10. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ALONGWI TH THE ORDER OF THE TAX AUTHORITIES BELOW. I HAVE ALSO GONE THROUGH THE CASE LAW AS HAS BEEN R ELIED ON BEFORE ME. SECTION 32 OF THE INCOME-TAX ACT PROVIDES FOR THE DEPRECIATION IN RES PECT OF BUILDINGS MACHINERY PLANT OR FURNITURE BEING TANGIBLE ASSETS AS WELL AS FOR THE INTANGIBLE ASSETS ACQUIRED ON OR AFTER 01.04.1998 IF THE ASSET IS WHOLLY OR PARTLY USED BY THE ASSESS EE FOR THE PURPOSES OF THE BUSINESS OR PROFESSION. 5 THERE IS NO DISPUTE ABOUT THE OWNERSHIP OF THE BUIL DING AS WELL AS THE PROJECTOR BY THE ASSESSEE. ONLY DISPUTE RELATES TO WHETHER THE BUILDING AND PR OJECTOR WERE USED FOR THE PURPOSES OF BUSINESS OR NOT. IF THE BUILDING AND THE PROJECTOR WERE WHO LLY USED FOR THE PURPOSES OF BUSINESS THE ASSESSEE IS ENTITLED FOR THE DEPRECIATION IF THE B UILDING OR THE PROJECTOR IS PARTLY USED FOR THE PURPOSES OF BUSINESS THEN THE ASSESSEE IS ENTITLED FOR THE PROPORTIONATE DEPRECIATION IN VIEW OF THE PROVISIONS OF SECTION 32 READ WITH SECTION 38(2 ) OF THE ACT AS THE A.O. CAN DISALLOW THE DEPRECIATION TO THE EXTENT BUILDING AND THE PROJECT OR IS NOT USED FOR THE PURPOSES OF THE BUSINESS. THE ASSESSEE IS A PRIVATE LIMITED COMPANY. NOTHING HAS BEEN BROUGHT ON RECORD EITHER FROM THE REVENUES SIDE OR FROM THE ASSESSEES SIDE WHETHER THE DIRECTOR WAS OCCUPYING THE BUILDING IN TERMS OF HIS LETTER OF APPOINTMENT AS WELL AS IN AC CORDANCE WITH BOARD RESOLUTION APPROVING THE TERMS AND CONDITIONS OF PROVIDING THE FACILITY TO T HE DIRECTOR. IT IS ALSO NOT CLEAR FROM THE FACTS BEFORE ME WHETHER THE PERQUISITE VALUE OF THE HOUSE PROPERTY BEING PROVIDED TO THE DIRECTOR HAD BEEN CONSIDERED IN THE HANDS OF THE DIRECTOR OR NOT . THE QUESTION WHETHER THE PROPERTY HAS BEEN OCCUPIED BY THE ASSESSEE FOR THE PURPOSES OF BUSINE SS OR NOT WOULD DEPEND ON THE FACTS OF THE CASE. IF THE OCCUPANCY OF THE ASSESSEE COMPANYS P ROPERTY BY THE DIRECTOR IS WITH A VIEW TO ENABLE HIM TO FUNCTION MORE EFFICIENTLY FOR THE PUR POSES OF THE ASSESSEES BUSINESS IN MY OPINION THE ASSESSEE WILL BE ENTITLED FOR THE DEDU CTION OF THE DEPRECIATION UNDER SECTION 32 OF THE ACT SUBJECT TO THE PROVISIONS OF SECTION 38 OF THE ACT. ALTHOUGH THE CIT(A) HAS GIVEN HIS FINDING IN FAVOUR OF THE ASSESSEE ALLOWING DEPRECIATION TO THE ASSESSEE RELYING ON THE CASE AS HAS BEEN CITED BY THE ASSESSEE BUT NO FINDING HAS BEEN GIVEN WHETHER THE DIRECTOR OF THE ASSESSEE COMPANY WAS OCCUPYING THE RESIDENCE TO ENABLE THE COMPANY T O FUNCTION MORE EFFICIENTLY FOR THE PURPOSES OF ASSESSEES BUSINESS. IN MY VIEW IN THE ABSENCE OF SUCH CLEAR FINDING IT WOULD ONLY BE AN ENJOYMENT OF ASSESSEES ASSET FOR PERSONAL PURPOSES AND AS SUCH SECTION 38 MAY BE ATTRACTED. I 6 HAVE GONE THROUGH THE BOARDS LETTER NO.F10/97/63-I T(A-I) DATED 29.02.1964 ADDRESSED TO THE COMMISSIONER OF INCOME TAX. THIS LETTER STATES AS UNDER :- 235. FANS AIR CONDITIONERS REFRIGERATORS ETC. P ROVIDED BY THE EMPLOYER AT THE RESIDENCE OF EMPLOYEES WHETHER SHOULD BE C ONSIDERED TO HAVE BEEN USED WHOLLY FOR THE PURPOSE OF EMPLOYERS BUSINESS AND F ULL DEPRECIATION BE ALLOWED. - ATTENTION IS INVITED BOARDS LETTER NO.F10/97/63-IT (A-I) DATED 29.02.64 ADDRESSED TO THE COMMISSIONER OF INCOME-TAX IN WHI CH INSTRUCTIONS WERE ISSUED INTER ALIA THAT DEVELOPMENT REBATE SHOULD NOT BE A LLOWED ON AIR-CONDITIONERS AND FANS GIVEN BY AN EMPLOYER FOR THE PERSONAL USE OF THE EMPLOYEES OR DIRECTORS AT THEIR RESIDENCE ON THE GROUND THAT THE SAID PLANT AND MACHINERY WERE NOT WHOLLY USED FOR THE PURPOSE OF THE ASSESSEES BUSINESS. THE QUESTION HAS BEEN RE-EXAMINED BY THE BOARD RECE NTLY IN THE LIGHT OF THE BOARDS LETTER F.NO.9/26/IT/60 DATED 21.3.60 I N WHICH IT WAS CLARIFIED THAT QUARTERS BUILT BY THE EMPLOYERS FOR THE ACCOMMODATI ON OF THEIR EMPLOYEES MUST BE REGARDED AS BUILDINGS USED FOR THE PURPOSE OF THE B USINESS AND DEPRECIATION ALLOWED THEREON WHERE THE OCCUPATION BY THE EMPLOY EES OF THE PROPERTY OWNED BY THE EMPLOYER IS SUBSERVIENT TO AND NECESSARY FOR TH E PURPOSE OF THEIR DUTIES. IT IS CONSIDERED THAT WHAT APPLIES TO BUILDINGS APPLIES T O THE FANS AIR CONDITIONERS AND REFRIGERATORS FITTED TO THOSE BUILDINGS AS THOSE A RE AMENITIES WHICH VIRTUALLY FORM PART OF SUCH BUILDINGS. 11. THIS CIRCULAR ALSO CLEARLY STATES THAT THE ASSE SSEE WILL BE ENTITLED FOR THE DEPRECIATION IF THE OCCUPATION BY THE EMPLOYEES OF THE PROPERTY OWN ED BY THE ASSESSEE IS SUBSERVIENT TO AND NECESSARY FOR THE PURPOSE OF THEIR DUTIES. 12. NOW COMING TO THE CASE LAW AS REFERRED TO BY T HE CIT(A) AND RELIED ON BY THE LD. A.R. DCIT VS. NAGARJUNA INVESTMENT TRUST LIMITED 65 ITD 17 (HYD.)(SB) THE QUESTION BEFORE THE SPECIAL BENCH WAS :- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE SOD/INDEXING SYSTEM FOLLOWED BY THE ASSESSEE CAN BE IGNORED WHILE COMPUTING THE INCOME ON THE GROUND THAT THE INCOME ACCOUNTED ON THAT BASIS IS NOT THE SAME AS THE INCOME WHICH HAS ACCRUED OR ARISEN UNDER THE MERCANTILE SYSTEM AS UNDERSTOOD UNDER THE INCOME-TAX ACT ? 7 13. FROM THE SAID QUESTION IT IS APPARENT THAT THI S CASE LAW IS NOT APPLICABLE TO THE FACTS OF THE CASE BEFORE ME. THE QUESTION BEFORE THE SPECIAL BE NCH DOES NOT RELATE TO THE CLAIM OF DEPRECIATION WHEN THE PROPERTY IS OCCUPIED BY THE D IRECTOR OF THE COMPANY. 14. IN THE CASE OF ADDL. CIT VS. GENERAL INDUSTRIE S CORPORATION 155 ITR 430 THE ASSESSEE HAS PURCHASED THE MACHINERY UNDER HIRE PURCHASE AGR EEMENT WITH NSIC. THERE IS CIRCULAR OF THE BOARD DATED 23 RD MARCH 1943 WHICH STATES TO TREAT SUCH MACHINERY A S BELONGING TO THE ASSESSEE AND ACCORDINGLY THE TRIBUNAL ALLOWED THE DEPRECIATI ON AND THE DEVELOPMENT REBATE. WHEN THE MATTER WENT BEFORE THE HONBLE HIGH COURT THE HON BLE HIGH COURT AGREED WITH THE TRIBUNAL THAT THE CIRCULAR OF THE BOARD IS BINDING ON THE AS SESSING OFFICER AND THE DEPRECIATION WAS ALLOWED TO THE ASSESSEE. 15. IN THE CASE OF CIT VS. AHMEDABAD KAISER-E-HIND MILLS CO. LTD 128 ITR 486 (GUJ.) AGAIN IT WAS HELD THAT CIRCULAR IS BINDING ON ALL T HE OFFICERS WITH THE EXECUTION OF THE ACT. 16. IN THE CASE OF CIT VS. SHAAN FINANCE (P.) LTD. 231 ITR 308 THE QUESTION RELATE TO THE CLAIM OF INVESTMENT ALLOWANCE UNDER SECTION 32A OF THE ACT. WHEN THE ASSESSEE ALTHOUGH OWNED MACHINERY BUT LEASED IT TO THE THIRD PARTIES AND US ED BY THEM IN THIS CASE THE HONBLE SUPREME COURT WHILE INTERPRETING THE PROVISIONS OF SECTION 32A HELD AS UNDER :- WHEN MACHINERY IS GIVEN ON HIRE BY THE OWNER TO TH E HIRER ON PAYMENT OF HIRE CHARGES THE INCOME DERIVED BY THE OWNER IS BU SINESS INCOME. THE HIRER ON THE OTHER HAND WHO PAYS HIRE CHARGES IS ENTITLED T O CLAIM THESE AS REVENUE EXPENDITURE. THE HIRER HAS NOT ACQUIRED ANY NEW AS SET. A TRANSACTION OF HIRE IS THEREFORE OF BAILMENT OF THE MACHINERY. THERE IS NO EXTINGUISHMENT OF ANY RIGHT OF THE OWNER IN THE MACHINERY. THERE IS MERELY A L ICENCE GIVEN TO THE HIRER TO USE FOR A TEMPORARY PERIOD THE MACHINERY SO HIRED. IN THE ABSENCE OF ANY ELEMENT OF SALE THERE IS NO REASON FOR TREATING SUCH AN AGREE MENT AS TRANSFER OR 8 DISALLOWING THE GRANT OF INVESTMENT ALLOWANCE WHEN THE ASSESSEE COMPLIES WITH THE REQUIREMENTS OF SECTION 32A. 17. THE FACTS OF THIS CASE ARE ALSO DIFFERENT FROM THE FACTS BEFORE ME. NO DOUBT IT IS SETTLED LAW THAT THE INSTRUCTIONS AND THE CIRCULARS ISSUED BY CBDT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 119 OF THE ACT ARE BINDING ON THE ASSESSING OFFICER AND ALL THE INCOME TAX AUTHORITIES. THE LETTER NO.F10/97/63-IT(A1) AS HAS BEEN REPRODU CED DOES NOT DIRECT THE ASSESSING OFFICER TO ALLOW DEPRECIATION ON ALL THE ASSETS OR PROPERTY OW NED BY THE ASSESSEE AND OCCUPIED BY THE EMPLOYEES OR THE DIRECTOR. THIS LETTER DIRECT THE ASSESSING OFFICER TO ALLOW THE DEPRECIATION PROVIDED THE EMPLOYEES OF THE ASSESSEE ARE OCCUPYIN G THE PROPERTY OR THE ASSETS IN DISCHARGING OF THEIR DUTIES AND OCCUPATION OF THE PROPERTY IS SUBS ERVIENT AND NECESSARY FOR THE PURPOSES OF THEIR DUTIES. I HAVE ALREADY HELD THAT NO MATERIAL OR EV IDENCE HAS BEEN BROUGHT ON RECORD BY EITHER SIDE WHETHER THE PROPERTY WAS OCCUPIED BY THE DIRE CTOR WAS ESSENTIALLY FOR DISCHARGING HIS DUTIES FOR THE PURPOSE OF BUSINESS. SIMILAR CONDIT ION WILL APPLY IN RESPECT OF DEPRECIATION ALLOWABLE FOR THE PROJECTOR. THE CIT(A) HAS SIMPLY APPLIED THE CIRCULAR WITHOUT EXAMINING THIS CIRCULAR AND WITHOUT GIVING ANY FINDING HOW THE CIR CULAR WILL APPLY TO THE FACTS OF THE CASE OF THE ASSESSEE. I ACCORDINGLY IN THE INTEREST OF THE J USTICE AND FAIR PLAY TO BOTH THE PARTIES SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER SHALL RE-D ECIDE THE ISSUE AFRESH IN ACCORDANCE WITH MY OBSERVATION HEREIN ABOVE. THUS THIS GROUND IS ALLO WED FOR STATISTICAL PURPOSES. 18. IN THE RESULT APPEAL FILED BY THE REVENUE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 22.01.2010) SD/- (P.K. BANSAL) ACCOUNTANT MEMBER PLACE: AGRA DATE: 22 ND JANUARY 2010. 9 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL AGRA TRUE COPY