Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 295 (MP)

V. N. Dubey v. CIT

2008-02-22

DIPAK MISRA, R.S.JHA

body2008
ORDER 1. Though this matter was listed for admission on consent of the learned Counsel for the appellant the matter is taken up for hearing. 2. Mr. Sanjay Lal, learned Counsel for the revenue, fairly stated that he has no objection. 3. The present appeal preferred under Section 260A of the Income Tax Act, 1961 is admitted on the following substantial questions of law: (A) Whether in the facts and circumstances of the case, Tribunal was correct in holding that poultry shed does not constitute plant and depreciation @ 25 per cent cannot be allowed? (B) Whether the Tribunal was justified in holding that charging of interest under Sections 234B and 234C was correct in spite of the fact that there was no order for charging such interest by the assessing officer? (C) Whether the Tribunal was correct in holding that miscellaneous income of Rs. 3,26,811 cannot be included for calculating rebate under Section 80JJ of the Act as it is not derived from the business of poultry farming? 4. It is not disputed at the Bar that the first question is covered by the decision of this court rendered in CIT v. Jabalpur Hatcheries (P) Ltd. MAIT No. 32/2005, decided on 7-5-2007. In view of the aforesaid the decision rendered therein, shall cover the 'issue and the assessee shall be entitled to depreciation @ 25 per cent. 5. As far as question No. B is concerned it is fairly stated at the Bar that the controversy is covered by the decision rendered in Asstt. CIT v. Central Hatcheries (P) Ltd. MAIT No. 25/2006, decided on 7-5-2007 wherein the appeal preferred by the revenue was dismissed. 6. In view of the aforesaid the interest charged by the assessing officer under Sections 234B and 234C of the Income Tax Act, 1961 is not tenable and accordingly, the benefit is granted in favour of the assessee. 7. As far as .question No. C is concerned, it relates to the issue whether the Tribunal is correct in holding that a miscellaneous income of Rs. 3,26,811 cannot be included for calculating rebate under Section 80JJ of the Act. 8. Mr. G.N. Purohit, learned senior Counsel being assisted by Mr. A. Oswal fairly stated that the said controversy has been put to rest by the decision rendered by the Apex Court in Pandian Chemicals Ltd. v. [2003] 262 ITR 278(SC) . 9. 3,26,811 cannot be included for calculating rebate under Section 80JJ of the Act. 8. Mr. G.N. Purohit, learned senior Counsel being assisted by Mr. A. Oswal fairly stated that the said controversy has been put to rest by the decision rendered by the Apex Court in Pandian Chemicals Ltd. v. [2003] 262 ITR 278(SC) . 9. In view of the aforesaid the assessee is not entitled to the benefit on the said score. 10. In view of the aforesaid premises, the appeal is allowed in part. There shall be no order as to costs.