Lord Williams, J. - (1.) IN the case the facts found are that the assessee purchased the Sulkea Jute Press is 1907, and worked it until 1930. In 1931 he leased it out for a term of one year to the Sulkea Jute Pressing Co., Ltd. - a private company in which he holds more than 60 per cent. of the shares, and that lease is subsisting, the lessee holding over under the terms of the lease. Those terms, inter alia, are : (a) You shall pay us a net annual of Rs. 22,500 only payable as follows, i.e. Rs 2,500 to be paid the 31st day of August, 1931 and the balance by four instalments of Rs. 5,000 each on the 1st November, 1931, 1st February, 1st May and 1st August, 1931. (b) During the said period of one year, we shall only pay the rents payable to the superior landlords and you shall pay the municipal taxes, Fire Brigade license and all other outgoing and public charges. (c) You shall carry out all repairs to the engines, machineries and plants, godowns and buildings during the said period at your own expenses.
(2.) THE assessees income from this source was assessee under Section 12 as income from "other sources". He claimed to be assessee under Section 10 as upon profits or gains of business and to entitled to an allowance for depreciation under Section 10(2)(vi). The assessee had another Jute Press which he purchased in 1915 and worked until 1921, when he leased it out until 1930, and subsequently, after a years vacancy, leased it out again.
(3.) THE Commissioner decided against the assessee contention and referred the following question for the decision of this Court : - "Weather in the circumstances set forth above, the assessee is entitled to an allowances for depreciation in respect of the buildings, plant and machinery leased to the Jute Pressing Company under Section 10(2)(vi) of the Act ?" The reasons for his decision are mainly that under Section 10(2)(vi) depreciation is allowable only when the machinery and plant in question are used for the purpose of the business the income of which is being taxed, and secondly that the assessee originally worked the jute press himself and that was his intention at the time of Acquisition cannot appreciate the cogency of the distinctions which the Commissioner has sough to draw. The press is the property if the assessee, and is used for the purpose of the business, the income of which is being taxed, namely, the business of letting out the press. The fact that the assessee originally intended to work the press himself seems to be irrelevant.;