1 D.B. Income Tax Appeal No.206/2010 Commissioner of Income Tax, Jaipur-III, Jaipur Versus M/s Janpriya Cement Ltd. Date of Order : 23.12.2010 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sameer Jain, for appellant. It is submitted that similar D.B. Income Tax Appeal No.223/2010 Commissioner of Income Tax Vs. M/s Janpriya Cement Ltd. arising out of the same impugned order has been dismissed by the Division Bench of this court vide order dated 25.10.2010. This court has passed following order on 25.10.2010: “By this appeal, a challenge has been made to the order passed by the Income Tax Appellate Tribunal, Jaipur Bench 'B' Jaipur confirming the order passed by the Commissioner of Income Tax (Appeals)-III, Jaipur. The short controversy raised by the learned counsel for the appellant is that the Company, which was not performing, rather lying closed for several years, claimed depreciation. The Commissioner of Income Tax (Appeals) permitted the benefit under section 32 of the Income Tax Act ignoring the fact that the assessee was not conferring entitlement under the said provision. In view of the aforesaid, the orders passed by the Income Tax Appellate Tribunal and the Commissioner of Income Tax (Appeals) deserve to be quashed and set aside. We have considered the submissions of the learned counsel for the appellant and perused the record. Perusal of the order passed by the Commissioner of Income Tax (Appeals) shows that the benefit under section 32 of the Income Tax Act has not been given in absolute term, rather benefit is subject to the provisions of Section 56(1)(ii) and Section 57(ii) of the Income Tax Act. In view of the aforesaid, what has been urged before us is not coming out from the order. For ready reference, para 2.3 of the order of the Commissioner of Income Tax( Appeal) is quoted here:- “I have carefully considered the facts of the case and the submissions of the appellant, as noted in 2 para above, it is observed that there is no dispute regarding the fact that though the appellant company did not carry out any manufacturing activity during the year, yet the plant & machinery was put to use and job work/hire charges income from such use, amounting to Rs.6,60,000/- was shown in the profit & loss account. Therefore, such income would fall under the Head 'Income from other Sources', in terms of Section 56(1)(ii) of the Act and the assessee would be entitled to deduction u/s 32, read with the provisions of S.57 (ii) of the Act. Hence, the A.O. is directed to accordingly allow the claim of depreciation to the appellant company.” Perusal of the order shows that the assessing authority has been directed to assess the amount in terms of section 56(1)(ii) read with section 57(ii) of the Income Tax Act. In light of the aforesaid, it is not coming out that absolute benefit exists under section 32 without a condition. The only argument raised is on the ground of allowing absolute benefit under section 32, which is not coming out from the order. Hence, we do not find any substantial question of law for entertaining this appeal. This appeal is accordingly dismissed.” For the reasons mentioned in the aforesaid cited order, this appeal being the similar one is also dismissed. (MAHESH BHAGWATI), J (ARUN MISHRA),CJ Mohit S/3