- (1.) HEARD learned counsel for the parties.
(2.) THIS is an application under S. 256(2) of the IT Act, 1961, requiring this Court to direct the Appellate Tribunal, Jaipur Bench, Jaipur, to state the case and refer the following two questions of law said to be arising out of the Tribunal's order, dt. 8th Jan., 1991, passed in ITA No. 5/Jp/90 and 1611/Jp/89 for the asst. year 1987 88 : (1) Whether, on the facts and in the circumstances of the case the Tribunal was legally justified in directing to allow depreciation on the vehicles which were not registered in the name of the assessee firm ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was legally right in observing that assessment framed in the case of this assessee should be treated as substantive and not protective specially in view of the fact that while completing the assessment in the case of firm consisting of 6 partners has established beyond doubt that assessee firm was only benami of M/s Mohd. Bux Shokat Ali 6 partners ? The first question relates to allowing the depreciation on the vehicles in the assessment of the firm where the vehicles were not registered in the name of the assessee firm but were registered in the name of one of the partners of the firm. The Tribunal has refused to refer the aforesaid question while rejecting the application under S. 256(1).
(3.) LEARNED counsel for the Revenue has urged that since similar question has earlier been directed by this Court to be referred in DB IT Ref. Appln. No. 31/98, decided on 22nd Feb., 2000, following the aforesaid decision this application may also be allowed in respect of the aforesaid question No. 1. We are of the opinion that though the aforesaid question is a question of law, the answer is self evident and settled by the decision of the Supreme Court and is not required to be made subject matter of a reference. Sec. 32 of the IT Act lays down the conditions for claiming deduction on account of depreciation of the building, plant and machinery which are used for the purposes of business of the assessee. The first condition is that such building, plant and machinery must be owned by such assessee and secondly that such asset must be used for the purpose of business of the assessee. So far as the fact that vehicles in question were used for the purposes of business of the respondent firm having eight partners, is a finding of fact and is not challenged. So far as ownership of the vehicle is concerned, the finding reached by the Tribunal in this regard is that consideration for purchase of such vehicles has been met by the firm consisting of eight partners and debited to the books of account of the firm only. It is also finding of fact arrived at by the Tribunal that the vehicles have been exclusively used for the purpose of business of the firm. It is merely because the vehicle has been registered under the Motor Vehicles Act in the name of one of the partners only, would not deprive firm of the ownership of the vehicle which is not a distinct from its partners.;