- (1.) THE Income Tax Appellate Tribunal, Delhi has referred the following question of law under section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') for opinion to this Court, relating to the assessment years 1981 -82 and 1982 -83: 'Whether the Income Tax Appellate Tribunal was legally correct in holding that the bottles and crates in assessee's case did riot constitute its stock -in -trade and should be treated as Plant?'
(2.) THE assessee is a private limited company. During the course of assessment proceedings, it claimed 100 per cent depreciation under section 32(1)(ii) of the Act on bottles and crates treating these as Plant used in business of manufacture of soft drinks run by the assessee company all along in the past had (sic) been treating bottles and crates as stock -in -trade. On appeal, the CIT(A) held that the appellant is entitled to 100 per cent depreciation on crates and bottles as each of items is in the nature of Plant and such of items is less than Rs. 750 in value. On further appeal by the department, the Income - tax Appellate Tribunal has confirmed the finding of the CIT(A). We have heard Shri Shambhu Chopra, learned counsel for the revenue. None appeared on behalf of the assessee -respondent.
(3.) THE learned standing counsel for the department accepted the position that the above controversy is no longer res integra and has been finally concluded by the judgment of various High Courts including that of CIT v. Prem Nath Monga Bottlers (P) Ltd. : [1997]226ITR864(Delhi) . The Delhi High Court has followed the judgment of the Andhra Pradesh High Court given in the case of CIT v. National Air Products Ltd. : [1980]126ITR196(Delhi) and has held that the bottles and shells used by the assessee constitute Plant for the purpose of section 32(1)(ii) of the Act. It has also observed that the Supreme Court has dismissed the Special Leave Petition filed against the decision of the Andhra Pradesh High Court (See : [1994]209ITR85(Bom) ).;