TaxTMI 
TaxTMI 
2013 (8) TMI 189
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....the 'Tribunal'). The appeal has been admitted vide order dated 5.9.2007 on the two substantial questions of law said to be arising out of the Tribunal's order : - "1. Whether on the facts and circumstances of the case, the Hon'ble ITAT was legally justified in allowing depreciation on the nursing home building at a higher rate as claimed by the assessee treating it as plant and machinery and holding that the decision in case of CIT v. Dr. B. Vankata Rao , 243 ITR 81 (SC) is applicable in the case, overlooking the later decision of the Apex Court in the case of CIT v. Anand Theater 244 ITR 192 and thereby ignoring the test of functionality? 2. Whether on the facts and circumstances of t....
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....come Tax (Appeals) and dismissed the appeal by holding as follows: "8. We have carefully considered the facts and circumstances relating to this matter and the rival submissions. According to the learned CIT(A), nursing home building fulfilled the conditions as laid down by the Hon'ble Karnataka High Court in the case of Dr. D. Venkata Rao (supra). Thus, the learned CIT(A) has taken the nursing home as plant & machinery and allowed the depreciation accordingly. He has also pointed out that in A.Y. 1993-94 also the depreciation was allowed by the Department in the assessment which was completed u/s 143(3) and in subsequent years also similar approach has been adopted. The department has not controverted the findin....
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....the entire material we find that the nursing home of the assessee which was equipped with scientific instruments should be treated as plant & machinery and depreciation should be allowed on it accordingly. It may be pointed out that the Department has also treated the nursing home of the assessee as plant in subsequent years and in earlier years and therefore the Department is expected to adopt consistent approach. In view of the above, we do not find any scope to interfere on this issue also. Hence, this ground stands rejected." We have heard Sri Shambhu Chopra, learned Senior Standing Counsel for the Revenue. Sri Krishna Agrawal has appeared for the respondent assessee. Sri Chopra submitted that the building of a Nursing Home cannot....
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....s held that if it was found that the building or structure constituted an apparatus or a tool of the taxpayer by means of which business activities were carried on, it amounted to a "plant" ; but where the structure played no part in the carrying on of those activities but merely constituted a place wherein they were carried on, the building could not be regarded as a plant. In case of Dr. B. Vankata Rao (supra) the Apex Court found that the assesses nursing home is equipped to enable the sterilisation of surgical instruments and bandages to be carried on which cover 250 sq. ft. and that nursing home is also equipped with an operation theatre. Therefore the plant and nursing home stated as plant and machinery and the depreciation should be ....