Commissioner of Income Tax vs Cama Hotels Ltd.

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K.J. Thaker, J.—This Tax Appeal u/s. 260A of the Income-tax Act, 1961 is filed against the order dated 23.12.2005, passed in ITA No. 1494/Ahd/2000 for the Assessment Year 1990-91, whereby, the appeal filed by the Revenue was dismissed, sustaining the order passed by the CIT(A).

Briefly stated, the facts are that the assessee company is a private limited company, engaged in running a hotel, restaurant and catering services. While finalizing the assessment u/s. 143(3), the Assessing Officer has allowed depreciation @ 20% on swimming pool instead of 33.33 as claimed by the assessee. The assessee claimed depreciation on swimming pool @ 33.33% treating it as plant and machinery.

Being aggrieved by the order passed by the A.O., the assessee has preferred appeal before CIT(A) and CIT(A) has partly allowed the appeal, allowing depreciation @ 33.33% on swimming pool, treating it as plant and machinery. Being aggrieved by the said order, the Revenue has preferred appeal before ITAT vide ITA No. 1494/Ahd/2000. By impugned order dated 23.12.2005, the Appellate Tribunal has dismissed the appeal preferred by the Revenue and has allowed the claim of the assessee and depreciation @ 33.33% was allowed as against the 20% allowed by the Assessing Officer. Hence, this appeal.

We have heard learned counsel for both the sides. The appeal was admitted vide order dated 28.06.2007, which reads as under:

"Heard the learned counsel for the appellant.

The appeal is admitted in terms of the following questions:-

"(A) Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT(A) holding that the assessee was entitled to depreciation on swimming pool at the rate of 33.33% treating it as plant and machinery?"

Issue notice to the other side. Paper book be filed within three months. List the appeal for final hearing after three months."

The issue raised in this appeal is already concluded by a decision of this Court rendered in Tax Appeal No. 26 of 1995 decided on 05.12.2005. The relevant paragraphs No. 3 to 5 of the said order reads under:

"3. Mr. M.J. Shah, learned advocate appearing on behalf of the respondent-assessee, has conceded to the position that in so far as question No. 1 is concerned, it stands answered against the assessee in light of decision in case of Commissioner of Income Tax, Trivandrum Vs. M/s. Anand Theatres, .

Hence, question No. 1 is answered in the negative i.e. in favour of the Revenue and against the assessee.

Similarly, Mrs. M.M. Bhatt, learned Standing Counsel appearing on behalf of the applicant-Revenue, has accepted the position that issue raised by question No. 2 stands answered against the Revenue by decision rendered by the Apex Court in the case of Allied Motors (P.) Ltd. Vs. Commissioner of Income Tax, Delhi, ."

Since the issue is already concluded vide the judgment rendered in the above decision, we are not assigning elaborate reasons for disposing this appeal. Accordingly, the question of law is answered in negative i.e. in favour of the Revenue and against the assessee. The appeal is allowed accordingly.