IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 ITA.No. 177 of 2002() --------------------- ITA.251/1998 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT:- ---------------------------------------- THE COMMISSIONER OF INCOME TAX, CALICUT BY ADV. SRI.P.K.R.MENON(SR.),SR.COUNSEL FOR IT SRI.GEORGE K. GEORGE, SC FOR IT RESPONDENT: APPELLANT:- ---------------------------------------- M/S.EDAPPAL HOSPITALS PVT.LTD., EDAPPAL. BY ADV. SRI.P.BALACHANDRAN FOR R SMT.PREETHA S.NAIR FOR R THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 27/2/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - I.T.A.NO.177 OF 2002 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of February, 2008. JUDGMENT C.N. Ramachandran Nair, J. Heard learned Standing Counsel for the Revenue and Shri P. Balachandran, learned Senior Counsel for the respondent. The question that arises for consideration is whether the hospital building is entitled to depreciation at the rate applicable to plant or at the rate applicable to building. We find from the order of the Tribunal that the Tribunal has allowed the claim of the assessee following the decision of the Supreme Court in C.I.T. v. Dr. B. Venkata Rao (243 ITR 81). However, it is to be seen that the Supreme Court has confined that decision to the facts proved in that case. This court had occasion to consider the matter in the decision in C.I.T. v. Dr. Ganga R. Menon (259 ITR 661). This court has given guidelines regarding apportionment of the hospital building between plant and building for the purpose of depreciation. Since none of the authorities have considered the features of the hospital building of the assessee, we set aside the order of the Tribunal and remand the matter back to the assessing officer for reconsideration and grant the benefits based on apportionment of ITA 177/2002 -2- the building in terms of the guidelines contained in the judgment of this court above referred. If required, the officer himself can inspect the hospital and study the distinct features of the area claimed as plant by the assessee. The appeal is disposed of as above. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/ ITA 177/2002 -3- C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - I.T.A. No.177 of 2002 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 27th February, 2008.