In Hukamchand Mills Ltd. v. CIT [1978] 114 ITR 870 (Bom.), the roads laid out within factory premises were regarded as part of factory buildings and were entitled to depreciation. In the case of CIT v. Lucas TVS Ltd. [1977] 110 ITR 346 (Mad.), the word ‘building’ was held to include roads laid in the proximity of factory for the purpose of providing access to factory and other buildings within compound and they were entitled to depreciation.
So far the question of benefit under s. 10B of the Act is concerned, the learned counsel for the appellant-assessee has submitted that the view as taken by the Tribunal cannot be sustained for the authoritative pronouncement of the Hon’ble Supreme Court in the case of ITO v. Arihant Tiles & Marbles (P.) Ltd. [2010] 186 Taxman 439 (SC) holding, inter alia, that step-wise activity of cutting marble blocks and converting into the polished slabs and tiles constituted manufacture or production in terms of s. 80-IA of the Act while distinguishing the decision in Aman Marble’s case (supra), and while observing, inter alia, held as under:
Various objections raised by AO as mentioned above have been verified by ld. CIT(A) and found that land and building and machineries are new. Capitals introduced by the Directors are from their own sources and not by transferring from M/s. Shagun. Out of 70 employees employed by assessee company, only 8 employees were related to M/s Shagun and this is not a reason that for employing the ex-employees of any other company curtails the benefit allowable to the assessee.
It is noticed that the appellant-assess sold the agricultural land, which was mutated in his name, for a sale consideration of Rs. 1,61,09,100/-. Thereafter out of the selling price, the appellant-assessee purchased land in the name of his son and daughter-in-law for a total consideration of Rs. 1,22,71,440/-. It is relevant to note that the land sold was in the name of appellant-assessee, while the land purchased was in the name of his son and daughter-in-law.7. A bare reading of Section 54B of the Income Tax Act does not suggest that assessee would be entitled to get exemption for the land purchased by him in the name of his son and daughter-in-law.
The only dispute by the Revenue is that the amount of remuneration has not been quantified in the partnership deed. It is mentioned in clause 8 of the partnership deed that remuneration will be payable as per norms fixed by the relevant provisions of the Income-tax Act. Thus the quantification of the remuneration is apparent from the clause 8 of the partnership deed.
In the instant case, the questions as to whether the assessee was entitled to get the current year depreciation even if it had not been claimed; or as to whether amendment to section 32 in year 2002-03 had a prospective effect or a retrospective effect on the application of current year’s depreciation and unabsorbed business losses and depreciation for the purpose of computation of Income tax, had been the disputable issues and had been of such questions of law which required further deliberation and discussion. Such aspects did not fall in the category of mistake apparent from the record and, therefore, could not have been dealt with under section 154.
CIT v. Hindustan Zinc Ltd. Amendment in the clause (a) of section 251(1) has been made so as to provide that the Commissioner (Appeals) may not set aside the assessment and refer the case back to the Assessing Officer for making fresh assessment with a view to help bringing an early finalization of the assessment, it cannot be assumed that the Commissioner (Appeals) is divested of the power to annul the assessment and then to pass appropriate consequential order. In the instant case, the factual aspect has been that the order as passed by the Assessing Officer which was subject of appeal before the Commissioner (Appeals), was not an original order of assessment but was an order of assessment passed after remand by the Tribunal. The directions in remand order having not been complied with, the course as adopted by the Commissioner (Appeals) cannot be said to be de hors the powers available to him under the statute.
Ordinarily, it is not incumbent on the part of the Tribunal to adjourn the case again when a last opportunity had already been granted to the Counsel for assessee, however, there may be number of circumstances where adjournment becomes necessary, in the interest of justice.
In view of various decision of Supreme Court it cannot be accepted that Union of India has no authority or power to levy service tax on renting of immovable property. The imposition of service tax on renting of immovable property was within the legislative competence of the Parliament and it does not fall within the legislative competence of the State under entry 49 of List II of the Seventh Schedule to the Constitution.
The appellate authorities have taken the view, and do not appear unjustified in doing so, that with the basic facts having been divulged and established by the assessee with furnishing of necessary details, it was for the Assessing Officer to establish that the details were false or incorrect and the additions could not have been made merely on generalized observations or on suspicion. In an overall view of the matter, it is found that the finding of facts have been rendered by the appellate authorities on the relevant considerations after due examination of record and do not appear suffering from perversity.
