D.K.Seth, J. - (1.) In this case the question arises as to whether a building of a cold storage is a plant. Mr. Soumitra Pal, learned counsel appearing for the Revenue, had sought to draw a distinction between a plant and a building. According to him, if it is a setting or canopy for sheltering a particular business, then it would not be a plant. The building has a more durability than a plant. Therefore, only the thermocole part of the building is the plant and not the rest. He relied on the decision in CIT v. Anand Theatres. Seeking to make a distinction on the facts, he drew inspiration from the said decision and contended that the building housing the cold storage can never be a plant since it has a distinct existence providing a shelter for housing the chambers being the thermocole part of the building which is less durable than the building. He attempted to draw a distinction on this aspect, namely, that the building which is a durable one is required to house or shelter the plant which is constructed by the thermocole part of the building which is less durable. Therefore, it would not be a plant for the purpose of depreciation at 33.33 per cent.
(2.) We have heard Mr. Pal and gone through the materials. The Tribunal had held the cold storage to be a plant relying on two decisions, one of the Punjab and Haryana High Court in CIT v. Yamuna Cold Storage and the other of the Allahabad High Court in CIT v. Kanodia Cold Storage. In fact, the decision in the Allahabad High Court does not help us in deciding the question. It was only a decision where a reference was sought for and the authority was asked to state the case. The Punjab case also does not really help in the facts and circumstances of the case. The question is now well settled in Anand Theatres' case. The test is not the functional one alone. The test is something more coupled with the functional test. The fact of the case whether it satisfied the test of a shelter or canopy or a setting or it satisfied the test of a means or apparatus or tools for carrying on the business. Each case has to be decided on its own merits. In the said decision, it was held that in the rarest of rare cases, a building can also be a plant provided it satisfies the test.
(3.) Running a cold storage is governed by the West Bengal Cold Storage (Licensing and Regulation) Act, 1966, and the West Bengal Cold Storage (Licensing and Regulation) Rules, 1967, in West Bengal. Without a licence, no cold storage can be commissioned nor can continue to function. The running of the cold storage is closely monitored and maintained under the said provisions of the 1966 Act and the 1967 rules as amended from time to time. Under Section 4(6), a licence can be cancelled for breach of any of the conditions of the licence or contravention of the Act. In certain circumstances of breaches, under Section 4A, the management of the cold storage can be taken over by the State Government or the State Government can appoint a person to manage the cold storage so taken over. Under Section 19, a licensee is liable to comply with the direction given to it. Under Section 20, a licensing officer may enter upon to inspect the premises with a view to satisfying himself that the requirements of the Acts are being complied with. Under Section 20B, the State Government may constitute Expert Committee for securing expert opinion for efficient management of cold storages. Under Section 20C, on receipt of report and the recommendation of the Expert Committee, the Government may issue such direction to the licensee as it thinks fit and proper and a licensee is bound to comply with such directions or orders of the State Government under Section 20D. Any breach invites penalty under Section 21 and an offence under the Act is cognisable. An order passed under the Act cannot be questioned in any court.;