BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS is an application under Section 256 (2) of the Income Tax Act, 1961 requiring this Court to direct the Income Tax 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 dated 8. 1. 1991 passed in I. T. A. No. 5/jp/90 and 1611/jp/89 for the assessment year 1987-88:- (1) WHETHER on the facts and in the circumstances of the case the ITAT 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 competing 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 Section 256 (1 ). Learned counsel for the revenue has urged that since similar question has earlier been directed by this Court to be referred in DB Income Tax Reference Appl. No. 31/98, decided on 22. 2. 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. Section 32 of the Income Tax 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. It has been brought to our notice by the learned counsel for the respondent that the principle has been settled by the Supreme Court while considering the question of ownership of an asset subject to claim of depreciation allowance under Section 32 of the Act in Mysore Minerals Ltd. vs. Commissioner of Income Tax (1), wherein the Court was considering the case of building which was in possession of the assessee company, the possession having been acquired on payment of price but actually deed of conveyance was not executed by the Housing Board in favour of the company, thus there was no vesture of legal title of the company in terms of the Transfer of Property Act required for transfer of ownership. Yet considering the meaning of word "owned" as used in Section 32, the Court answered the question. The Court posed a question for itself: "it is the word "owned" as occurring in sub-s. (1) of s. 32 which is the core of controversy. Is it only an absolute owner or an owner of the asset as understood in its legal sense who can claim depreciation? Or, a vesting of title short of full-fledged or legal ownership can also entitled an assessee to claim depreciation under Sec. 32?" Then the Court after considering the various aspects of the term ownership concluded that: "in our opinion, the term "owned" as occurring in Sec. 32 (1) of the It Act, 1961, must be assigned a wider meaning. Anyone in possession of property in his own title exercising such dominion over the property as would enable others being excluded therefrom and having right to use and occupy the property and/or to enjoy its usufruct in his own right would be the owner of the buildings though a formal deed of title may not have been executed and registered as contemplated by Transfer of Property Act, Registration Act, etc. . . . . "
(3.) IT is well settled that there cannot be two owners of the property simultaneously and in the same sense of the term. The intention of the legislature in enacting S. 32 of the Act would be best fulfilled by allowing deduction in respect of depreciation to the person in whom for the time being vests the dominion over the building and who is entitled to use it in his own right and is using the same for the purposes of his business or profession. Assigning any different meaning would not subserve the legislative intent. Thus the principle has been settled by the Supreme Court and on the application of the aforesaid principle the answer in the present case to the question raised is self-evident on the facts found by the Tribunal. We, therefore declined to require the Tribunal to refer the aforesaid question of law to this Court notwithstanding that it is being a question of law. It may be noticed that merely because a question of similar nature has earlier been referred to this Court by the Tribunal or has been made subject matter of reference by issuing direction under Section 256 (2) neither operates as resjudicata nor binds the Court at later stage to answer that question if the court is of the opinion that no question of law arises. ;