Commissioner of Income-tax Vs. Srinivasa Hatcheries P. Ltd. - Court Judgment

Excerpt:

- arbitration & conciliation act, 1996 [c.a. no. 26/1996]. section 11: [g.p. mathur & lokeshwar singh panta, jj] appointment of arbitrator arbitration clause in agreement providing for particular procedure for appointing arbitrator for setting disputes held, sub-sections (3), (4) and (5) of section 11 would not apply in such cases. stage for invoking sub-section (6) of section not arrived. civil court has no jurisdiction or authority to appoint an arbitrator. -- section 11(2)(b): appointment of arbitrator by court territorial jurisdiction of court tender floated and agreement executed in one state bank guarantee only given from bank at place in another state dispute arising over encashment of bank guarantee by principal question whether court at place where bank guarantee was given and encashed has jurisdiction to appoint arbitrator question was left open. .....question on the ground that the tribunal had followed the high court's judgment in the case of cit v. sri venkateshwara hatcheries (p.) ltd.:whether, on the facts and in the circumstances of the case, the poultry sheds should be treated as plant thereby allowing the assessee-company a higher rate of depreciation as applicable to plant and not the rate of depreciation as applicable to building?4. we are informed that the judgment of the high court in the said case of cit v. sri venkateshwara hatcheries (p.) ltd. was brought to this court but the special leave petition was dismissed on the ground of delay.5. it appears to us clear that a question of law is involved and that, therefore, the high court ought to have required the tribunal to refer to it the aforestated question. the high court then would be entitled to consider the question on the merits and take the earlier judgment in the case of cit v. sri venkateshwara hatcheries (p.) ltd. into account.6. the appeal is allowed. the order under appeal is set aside. the aforesaid question shall be referred by the tribunal to the high court for its decision, after drawing up a statement of case.7. no order as to costs.

Judgment:

ORDER

1. Delay condoned.

2. Leave granted.

3. The High Court, by the order under challenge, declined to call upon the Income-tax Appellate Tribunal to refer to it the following' question on the ground that the Tribunal had followed the High Court's judgment in the case of CIT v. Sri Venkateshwara Hatcheries (P.) Ltd.:

Whether, on the facts and in the circumstances of the case, the poultry sheds should be treated as plant thereby allowing the assessee-company a higher rate of depreciation as applicable to plant and not the rate of depreciation as applicable to building?

4. We are informed that the judgment of the High Court in the said case of CIT v. Sri Venkateshwara Hatcheries (P.) Ltd. was brought to this Court but the special leave petition was dismissed on the ground of delay.

5. It appears to us clear that a question of law is involved and that, therefore, the High Court ought to have required the Tribunal to refer to it the aforestated question. The High Court then would be entitled to consider the question on the merits and take the earlier judgment in the case of CIT v. Sri Venkateshwara Hatcheries (P.) Ltd. into account.

6. The appeal is allowed. The order under appeal is set aside. The aforesaid question shall be referred by the Tribunal to the High Court for its decision, after drawing up a statement of case.

7. No order as to costs.