Rajpal Yadav, Judicial Member. -

1. The present two appeals are directed at the instance of the assessee against separate orders of even date i.e., 24-10-2002 passed for assessment years 1996-97 and 1997-98 by the ld. CIT(A).

2. The grounds of appeal taken by the assessee are not in consonance with rule 8 of ITAT Rules. They are argumentative and descriptive in nature. However, the grievance of the assessee in both the years are common. In brief, the assessee is seeking redressal of its grievances on 3 counts in both assessment years namely :-

1. Re-opening of assessment by issuance of notice under section 148 is bad in law.

2. Disallowance of depreciation on SAPT building and

3. Disallowance of maintenance of lift expenditure pertaining to said (SAPT) building.

3. The first common grievance in both the years is that the ld. Assessing Officer has erred in reopening of assessment already made under section 143(3) by issuance of notice under section 148 of the. The brief facts are that the assessee company at the relevant time was engaged in the trading activity of cotton waste. It has filed its return of income on 27-11-1996 and 1-12-1997 declaring total income of Rs. 16,74,081 and Rs. 21,04,918 in the assessment years 1996-97 and 1997-98 respectively. The ld. Assessing Officer framed assessment under section 143(3) on 8-1-1999 and 17-12-1999 in assessment years 1996-97 and 1997-98 respectively. On 24-8-2000 a survey under section 133A was carried at the business premises of the assessee. During the survey statements of Shri D.R. Barucha one of the Director and Estate Manager Shri S.R. Krishnan were recorded. According to the Assessing Officer they have disclosed that SAPT building was in bad condition and therefore in 1994 building was vacated for major structural reconstruction which included strengthening of columns and ceiling. This structural renovation work continued from March 1994 to March 1997 and thereafter part of the building was let out to German Express Shipping Agency (I.) (P.) Ltd. This letting out happened in April 1997. On the basis of such revelation, the ld. Assessing Officer formed an opinion that this building was not used by the assessee for the purpose of its business during this period and hence depreciation claimed by the assessee and allowed to it deserves to be withdrawn. He therefore, issued notice under section 148 of theon 31-10-2000 in both the assessment years and reopened the assessment.

4. Challenging the action of the Assessing Officer the assessee contended that assessment under section 147 read with section 143 was made after expiry of four years from the end of accounting year in assessment year 1996-97. Therefore it is barred by limitation.

5. The ld. CIT(A) has held that after amendment effected in section 149(1) with effect from 1-4-1989 the time limits have been made to depend upon, whether the case has been subject to scrutiny and also amount of income which has escaped assessment. If the escaped income is Rs. 1 lakh or more a notice can be issued beyond 7 years but up to 10 years from the end of relevant assessment year. The ld. first appellate authority held that income escaped in these assessment years is more than Rs. 1 lakhs therefore, reassessment was framed well in time.

6. Before us the ld. Counsel for the assessee submitted that assessment has been reopened merely on the basis of change of opinion and there was no failure on the part of the assessee to disclose all material facts fully and correctly. On the other hand ld. Departmental Representative relied upon the orders of the revenue authorities below.

7. We have duly considered the rival contention and gone through the record carefully. No doubt assessment in both the years were made under section 143(3) and thereafter these were reopened by issuance of notice under section 148 in both the assessment years within 4 years, therefore, the benefit of interdiction available in the proviso appended to section 147, putting an embargo upon the power of the Assessing Officer that in case a scrutiny assessment under section 143(3) is made and 4 years have expired then no action shall be taken under section 147 unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of assessee to disclose fully and truly all material facts, is not available to assessee. In the present case the notice under section 148 was served within 4 years. The basis for forming an opinion that income has escaped assessment is the outcome of survey carried out at the business premises of the assessee on 24-8-2000 where according to the Assessing Officer it revealed that SAPT building was not used for the purpose of business. On the basis of such report the ld. Assessing Officer arrived at a conclusion that income has escaped assessment therefore the information which has come to his possession is the basis for forming a prima facie belief about escapement of income. The assessments have not been reopened merely on the basis of change of opinion i.e., merely on the basis of re-appreciation of the material already possessed by the Assessing Officer. In view of the above discussion we do not find any merit in the first grievance of the assessee. The reopening of the assessment is upheld in both the years.

8. The next two issues are interlinked with each other in both the assessment years. They relate to disallowance of depreciation on SAPT building as well as maintenance and lift expenditure incurred on this. The basic reason for disallowance is that building was not used for the purpose of the business.

9. The brief facts are, as observed earlier a survey under section 133A was carried out at the business premises of the assessee wherein statement of Shri S.R. Krishnan, Estate Manager and Director Shri D.R. Barucha were recorded. The Estate Manager in his statement has disclosed that SAPT building was not used by the assessee for its business from April 1994 till the date of survey. The Assessing Officer as well as the ld. CIT(A) has reproduced question Nos. 2, 6 and 27 along with the reply of the Estate Manager in their order. On the basis of this statement they arrived at a firm conclusion that the building was not used for the purpose of business and therefore, the assessee is not entitled for the depreciation.

10. The appeal to the ld. CIT(A) did not bring any relief to the assessee. The orders in both the assessment years are though separate but passed on even date and almost similarly worded on vital points. While impugning the findings of the ld. CIT(A) the ld. Counsel raised 3 fold submissions. He firstly contended that the statement of Estate Manager was not recorded during the course of search. It is a statement recorded during survey and per se not admissible. Presumption of truth is not attached with this statement because it is recorded under section 133A(3)(iii) and not 132(4) of the. Copy of this statement was never supplied to the assessee. Hence, without giving an opportunity to cross examine this person the statements cannot be used against the assessee. In his second fold of submission he contended that merely on the basis of this statement the ld. Assessing Officer had arrived at a wrong conclusion that building was not used for the purpose of the business. In order to demonstrate that the building was used for the purpose of business, the ld. Counsel for the assessee took us through paper book containing 33 pages filed by the assessee. He pointed out that the assessment in assessment year 1993-94 was made under section 143(3) on 26-10-1995 and a depreciation was granted to the assessee. Similarly in other assessment years i.e., 1994-95 and 1995-96 the returns were accepted vide intimation issued under section 143(1)(a) of theand a depreciation was granted to the assessee. Ld. Counsel further, with a view to indicate the user of the building took us through the break-up of electricity expenses, break-up of telephone expenses pertaining to this building as well as other places in Mumbai and other places in the country. On the strength of telephone expenses he pointed out that at SAPT building apart from other phones, one telephone connection bearing No. 2626344 was available and for this telephone assessee had incurred Rs. 18,197 during this year. Similarly, demonstrating the electricity expenses he pointed out that a sum of Rs. 5,37,444 was incurred for Bombay. This sum include repair of Rs. 3,28,603 and payment of Rs. 15,907 and Rs. 1,85,748.66 to BEST. The specific details are available on page 14 of the paper book. Further taking us through the statement reflecting sales and purchases at Bombay during 1995-96 and 1996-97 he submitted that substantial business activities have been carried out by the assessee. In this connection he drew our attention towards page Nos. 12-13 where sales and purchase statement are available. He further contended that address of the registered office of the assessee is in SAPT building. All correspondence were made on that address. Even in the assessment order address of SAPT building is appearing. He pointed out that demand notice was also served on this address. Thus it do indicates that business activities were carried out from this building. The ld. Counsel for the assessee did not deny the fact that building was under renovation, but according to him it is not that assessee has totally abandoned the building. It was using it for its business purpose as well as carrying out renovation work. He pointed out that in a series of authoritative pronouncements it has time and again held that depreciation will not only be granted on actual user of the asset but it is admissible even on passive user of the asset. He emphasized that in the case of the assessee it is not passive use only but assessee was using the building actually. Some part of the building is if under renovation its claim cannot be rejected. He relied upon the following decisions :-

1.

Skyline Engg. Contracts (I.) (P.) Ltd. v. Dy. CIT [2005] 94 TTJ (Delhi) 201.

2.

Sumerpur Co-operative Marketing Society Ltd. v. Asstt. CIT [2002] 75 TTJ (Jodh.) 322

3.

CIT v. Refrigeration & Allied Industries Ltd. [2001] 247 ITR 12 (Delhi).

4.

CIT v. P.I. Simon [1991] 187 ITR 302 (Ker.).

5.

CIT v. Geo Tech Construction Corpn. [2000] 244 ITR 452 (Ker.).

11. In his next fold of submission he contended that this building is part of assessee's block of assets. Depreciation is admissible on block of asset and not on individual assets. In some of the years this has been granted to the assessee by treating it as part of the block of assets. In case the version of Assessing Officer if accepted then it will give rise to dispute for computation of income on sale of this asset.

12. On the strength of the following Tribunal decisions (a) Packwell Printers v. Asstt. CIT [1996] 59 ITD 340 (Jab.), (b) Natco Exports v. Dy. CIT [2003] 86 ITD 445 (Hyd.) he contended that after amendment in section 32 with effect from 1-4-1998, the individual assets once taken into the block of assets would loose its identity and for the purpose of allowing depreciation only the block of asset is to be considered. If block of assets is owned by the assessee and used for the purpose of business, depreciation will be allowed.

13. Controverting the contention of the ld. Counsel for the assessee, the ld. Departmental Representative relied upon the orders of the revenue authorities. He took us through the question and the replies of the statement of Shri Krishnan, Estate Manager, reproduced by the revenue authorities below. He submitted that this statement do indicate that asset was not used for the business of the assessee and hence it is not entitled for depreciation. With regard to the grant of depreciation even on passive user he submitted that Hon'ble Jurisdictional High Court in the case of Dinesh Kumar Gulabchand Agarwal v. CIT [2004] 267 ITR 768 (Bom.) [LQ/BomHC/2003/27] has held that expression "used" as employed in section 32 of the Income-tax Act denotes actual user of the asset. If the assets are actually used depreciation would be admissible to the assessee otherwise not.

14. We have duly considered the rival contention and gone through the record carefully. Interpretation of expression "used" employed in section 32 had come up on a number of occasions before the Hon'ble Supreme Court, Hon'ble High Court and the Tribunal. Recently the Hon'ble Presi-dent of the Tribunal while sitting as a 3rd Member in the case of Sanghvi Movers (P.) Ltd. v. Dy. CIT [2008] 110 ITD 1 (Pune) has made a lucid enunciation of law on this point. We cannot do better than to extract some of the findings recorded in para 15 of his order which reads as under :-

"15. I have given careful thought to the rival submissions of the parties. There is no dispute first condition for getting depreciation, i.e., ownership of the asset has been fully established in this case. The controversy relates to the second condition, i.e., the user of the asset for purposes of business. Facts leading to the controversy have already been noted above. I would like now to refer to the relevant decisions on controversy.

15.1 In Machinery Mfrs. Corpn. Ltd. v. CIT [1957] 31 ITR 203 (Bom.), the Bombay High Court has observed that the expression 'used' is section 10(2)(vi ) of the Indian Income-tax Act, 1922, corresponding to section 32 of the Act, has to be given a wider meaning. The expression includes passive as well as active user. It has been judicially held in a number of cases that depreciation might be allowed in certain cases even though the machinery was not in use or was kept idle. The words 'used for the purposes of business' are capable of larger and narrower interpretation.

If the expression used is construed strictly, it can be taken as connoting or requiring the active requirement or actual working of the machinery, plant or building in the business. On the other hand, a wider meaning will include not only cases where machinery and plant, etc., are actively employed but also case where there is what may be described as passive user of the same in the business and the same can be said to be in use when it is kept ready for use.

15.2 In the case of Whittle Anderson Ltd. (supra), Their Lordships of the Bombay High Court were concerned with the question whether ginning machines remaining idle under pooling agreement could be said to be used so as to be entitled to the depreciation. Their Lordships made the following relevant observations :

'Now the expression "use or used" has several times received interpretation at the hands not only of this court and of the other High Courts but by the Supreme Court itself. So far as this Court is concerned, in CIT v. Vishwanath Bhaskar Sathe [1937] 5 ITR 21 (Bom.), in a case which was very similar to the present case, this court, with reference to the provisions of section 10(2)(vi) of the Indian Income-tax Act, said that the word "used" in that section should be understood in a wide sense so as to embrace passive as well as active user. They pointed out that when machinery is kept ready for use at any moment in a particular factory under an express agreement from which taxable profits are earned, the machinery can be said to be used for the purpose of the business which earned the profits, although it was not actually worked, and the depreciation allowance granted by section 10(2)(vi) could be given in respect of such machinery. No doubt, that was said in connection with clause (vi) of section 10(2), but the Supreme Court has pointed out that all these clauses are in pari materia and the expression used in either of them would apply to the other : see the Liquidators of Pursa Ltd. v. CIT [1954] 25 ITR 265 [LQ/SC/1954/20] ; [1954] SCR 767 (SC).

In Vishwanath Bhaskar Sathe's case, the facts were similar to the present case. The assessee owned a ginning factory and was a member of a pool with the owners of other ginning factories. During the assessment year in question in that case the assessee's factory had not been actually employed in the work of ginning in accordance with the pooling agreement, though he had received a share of the profits. That was because the assessee was under the agreement bound at his own expense to keep the gins and other working plant and machinery in good repair and condition and working order even when his factory was not working, so that it may be ready for actual use at any moment. It was held that, under these circumstances, the assessee was entitled to the allowance under section 10(2)(vi)'.

Their Lordships further made reference to decision of Supreme Court as under :

'In Liquidators of Pursa Ltd. [1954] 2 ITR 265; [1954] SCR 767 (SC) referring to this expression in section 10(2)(vi), "used for the purpose of business", the Supreme Court ruled that it meant "used for the purpose of enabling the owner to carry on the business and earn profits in the business".'

In the penultimate para, Their Lordships held as under :

'The agreement clearly provided that, although two out of the four presses which were directly in the pooling arrangement were to remain idle while the two presses worked, it is clear that the owners of those presses which were idle had to keep them ready for use at any time and the contingency for their use could also, upon the terms of the agreement, arise at any time and having regard to the definition of the word "used" as indicated in the authorities to which we have referred, it is clear that even these presses which remained under forced idleness were in use during the entire period of the year.'

15.3 In the case of Dilip Singh Sardarsingh Bagga (supra), the Bombay High Court on the question of allowing depreciation and after relevant provisions of the Motor Vehicles Act, observed as under :

'In view of the foregoing discussion, we are of the clear opinion that the assessee, who had purchased the motor vehicle for valuable consideration and used the same for his business, cannot be denied the benefit of depreciation on the ground that the transfer was not recorded under the Motor Vehicles Act or that the vehicles stood in the name of the vendor in the records of the authorities under the Motor Vehicles Act.'

15.4 In the case of CIT v. Salkia Transport Associates [1983] 143 ITR 39 (Cal.) five buses owned by the assessee were not registered under the Motor Vehicles Act. Their Lordships noted relevant provisions of the Motor Vehicles Act and on the question whether the assessee was entitled to depreciation under the above circumstances observed as under :

'That the assessee has purchased five new buses is not disputed. The only argument is that the vehicles were not registered in the name of the assessee under the Motor Vehicles Act. But that is one of the factors that has to be taken into consideration for deciding the questions of ownership of the buses. It cannot be said as a matter of law that unless the buses are registered in the name of the assessee, the assessee cannot be regarded as the owner of the buses. On the contrary, the essential pre-requisite for registration under section 22(1) of the Motor Vehicles Act is ownership of the motor vehicle. Unless a person is the owner of a motor vehicle he is not entitled to get it registered in his name under section 22(1) of the Motor Vehicle Act. The Tribunal in this case has come to the conclusion on a review of the facts and also of the agreement that the assessee was the owner of the five new buses and as such was entitled to claim depreciation allowance on these buses. The Tribunal has not committed any error of law in coming to this conclusion. The requirement of section 32 of the Income-tax Act is that the vehicles must be "owned by the assessee". This section does not require that the assessee must be a registered owner of the vehicles in order to claim depreciation allowance in respect of them. We are of the view that, in the facts of this case, the new buses were owned by the assessee within the meaning of section 32 of the Income-tax Act and the assessee was entitled to claim depreciation allowance on these vehicles.'

15.5 In the case of Anil Bulk Carriers (P.) Ltd. v. CIT [2005] 276 ITR 625 (All.), trucks purchased by the assessee for oil transport business were registered with transport authority only on 1-4-1997. These trucks were also fined for their user for the year ending 31-3-1997. On the question whether assessee was entitled to depreciation in the assessment year 1997-98 on above trucks, Their Lordships after considering all relevant decisions, observed as under :

'The Tribunal was obsessed with a view that since the registration of the vehicle by the registering officer under the Motor Vehicle Act, 1988 was granted on 1-4-1997, the vehicle could not be plied on 31-3-1997. The Tribunal approached the said problem with wrong angle. For the income-tax purposes the Tribunal was required to examine as to whether the assets (oil tankers) were used during the previous assessment year or not. The user of oil tankers even prior to obtaining registration from the registering-authority or without payment of road tax, etc., may be violative of the provisions of the Motor Vehicle Act, 1988. But nonetheless if the vehicle was plied even without obtaining registration or payment of road tax, etc. it cannot be said, as a matter of fact, that the vehicle has not been used. The attention of the Tribunal was not drawn towards rule 47 of the Motor Vehicles Rules which gives seven days time to apply for registration of the vehicle with the registering authority under the Motor Vehicles Act. The finding recorded by the Tribunal that the oil tankers were not used on the last date of the previous year is not based on legal evidence, and has given rise to a substantial question of law involved in the appeal and, therefore, it is not correct to say that the appeal is concluded by finding of fact and is not maintainable.

In view of above exposition of law the case in hand is to be examined. The two oil tankers along with mounted bodies were purchased for the business by the assessee who is a transporter during the accounting year. It is not the case of the Department that these oil tankers were not necessary for the business purposes of the assessee-appellant. These oil tankers were actually plied on the road on the last date of the accounting year were challanged and also fined by the CMM, Kanpur. Therefore, the oil tankers were actually put to use in the relevant accounting year by the assessee for its business purposes. Alternatively the assessee was entitled for depreciation on these two oil tankers as they were purchased during the relevant accounting year for business purposes and were ready to use, road tax was deposited and the oil tankers were got registered with the registering authority on the last date of the accounting year. Failure of the assessee to produce the hire contract with the parties is in respect of the two oil tankers is of little significance in view of exposition of law that the word "used" under section 32 of thehas to be given wider meaning and it will include assets ready for use.'

15.6 The Punjab and Haryana High Court in CIT v. Pepsu Road Transport Corpn. [2002] 253 ITR 303 [LQ/PunjHC/2001/1318] has held that the assessee who was the transporter had to keep spare engines in the store, was entitled to depreciation on the spare engines in the store, as the engines were meant to be used in the case of need. There is a normal depreciation of value even when machines or equipment is merely kept in the store. Looking to the nature of business of that assessee, who was a transporter it was held that keeping spare engines in store to meet emergent situations, was the requirement of business.

15.7 In the case of Mysore Minerals Ltd. v. CIT [1999] 239 ITR 775 (SC), Their Lordships of Supreme Court in respect of claim of depreciation made the following observations :

'Section 32 of the Income-tax Act, 1961, confers a benefit on the assessee. The provision should be so interpreted and the words used therein should be assigned such meaning as would enable the assessee to secure the benefit intended to be given by the Legislature to the assessee. It is also well settled that where there are two possible interpretations of taxing provision, the one which is favourable to the assessee should be preferred.

Generally speaking depreciation is allowance for the diminution in the value due to wear and tear of a capital asset employed by an assessee in his business. Black's Law Dictionary (fifth edition) defined depreciation to mean, inter alia :

'A fall in value; reduction of worth. The deterioration, or the loss or lessening in value, arising from age, use, and improvements, due to better methods. A decline in value of property caused by wear or obsolescence and is usually measured by a set formula which reflects, these elements over a given period of useful life of property ... Consistent, gradual process of estimating and allocating cost of capital investments over estimated useful life of asset in order to match cost against earnings.'

An overall view of the above said authorities shows that the very concept of depreciation suggests that the tax benefit on account of depreciation legitimately belongs to one who has invested in the capital asset, is utilizing the capital asset and thereby losing gradually investment caused by wear and tear, and would need to replace the same by having lost its value fully over a period of time.

It is evident from above noted decisions that depreciation is an allowance for diminution in value due to wear and tear of a capital asset and that claim on account of depreciation legitimately belongs to one who has invested in the capital asset.

15.8 Reference to section 32(1) as existing in all material time reveals that building, machinery and other assets mentioned in sub-section (1) when owned by the assessee and 'used for purposes of the business or profession' are entitled to depreciation. It has been noted that section 32 confers the benefit on the assessee and it is required to be construed liberally and in a manner which is favourable to the assessee. I find force in assessee's submission that decision of Hon'ble Bombay High Court in the case of Dineshkumar Gulabchand Agrawal (supra) has to be read in the light of other decisions of Bombay High Court and of the Supreme Court and when so read, it does not lay any different law. Expression 'used' is to be construed in the context of facts and circumstances of the case and would include not only active use of asset but also passive use of asset for purposes of business. This is what has been consistently held by the Supreme Court and the Bombay High Court in the decisions cited supra. Permanent registration under the Motor Vehicles Act is not sine qua non for claim of depreciation. Temporary registration for a limited period pending permanent registration is good enough to claim depreciation on asset owned by the assessee and used in business, as noted in the decisions of different High Courts. No decision taking a contrary view was cited before me. Hiring of asset is one way of establishing user of the asset in business. But 'user' or 'used' can be proved independent of hiring agreement. Through other evidence assessee can prove that assets were used for the purposes of business or profession. The expression 'purposes of business' itself is very wide expression and it is not necessary that receipt of income must be shown to be entitled to claim depreciation." [Emphasis supplied]

15. In the light of above principle let us examine the facts of the present case. For negating the claim of the assessee the ld. Revenue authorities are harping upon solely on the statement given by Shri Krishnan, Estate Manager in a survey carried out under section 133A of theon 24-8-2000. The ld. revenue authorities below have reproduced the question and replies given by Shri Krishnan at the time of survey. Apart from this statement they have not brought anything on record for negating the claim of the assessee with regard to depreciation. During the course of survey the officer could record the statement of a person under sub-section (3)(iii) of section 133A of the. This clause authorise the authority to record the statement of any person which may be useful for or relevant to any proceedings under the. However, the officer is not authorized to record the statement on oath and hence, statement taken during the course of survey has no evidentiary value. It is simply an information which can be used for corroboration purpose for deciding any issue in favour or against, the assessee. This issue has come up before the Hon'ble Kerala High Court in the case of Paul Mathews & Sons v. CIT [2003] 263 ITR 101 and the Hon'ble Court at page 108 had made the following observations :

"Section 133A(3)(iii ) enables the authority to record the statement of any person which may be useful for, or relevant to, any proceeding under the. Section 133A, however, enables the income-tax authority only to record any statement of any person which may be useful, but does not authorize taking any sworn statement. On the other hand, we find that such a power to examine a person on oath is specifically conferred on the authorised officer only under section 132(4) of the Income-tax Act in the course of any search or seizure. Thus, the Income-tax Act, whenever it thought fit and necessary to confer such power to examine a person on oath, the same has been expressly provided whereas section 133A does not empower any Income-tax Officer to examine any person on oath. Thus, in contradistinction to the power under section 133A, section 132(4) of the Income-tax Act enables the authorised officer to examine a person on oath and any statement made by such person during such examination can also be used in evidence under the Income-tax Act. On the other hand, whatever statement is recorded under section 133A of the Income-tax Act it is not given any evidentiary value obviously for the reason that the officer is not authorised to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law. Therefore, there is much force in the argument of learned counsel for the appellant that the statement elicited during the survey operation has no evidentiary value and the Income-tax Officer was well aware of this."

16. Contrary to these facts possessed by the Assessing Officer assessee has demonstrated that the building though was under renovation, it was not totally abandoned. It has been using this building for business purposes. It has incurred electricity expenses, telephone expenses made sales and purchases from this office. The details of these expenses have duly been placed before us. A reference to page Nos. 13 to 26 of the paper book can be made in this regard. The assessee has also pointed out that all correspondence is being made by this office premises only. Even demand notice was served on this premises. It was also pointed out that registered office address is also of this building. It is the cardinal principle of appreciation of facts that when an explanation or defense of assessee based on a number of facts supported by evidence and circumstances required consideration, whether the explanation is sound or not, must be determined not by considering the weight to be attached to each single fact in isolation but by assigning the cumulative fact of all facts in their setting as a whole. If we weigh the material produce by the assessee viz-a-viz the solitary statement of the Estate Manager elicited by the authority during the course of survey, then scale would tilt in favour of the assessee because the statement was recorded under sub-section (3)(iii) of section 133A without administering the oath to the Estate Manager. This is just an information which required corroboration for deciding an issue against the assessee. The Assessing Officer has not brought any corroborative piece of evidence in support of this information. In the past depreciation was granted to the assessee. Orders for assessment years 1993-94 to 1995-96 have been brought to our notice exhibiting this fact. The Assessing Officer failed to establish that building was not used for the purpose of business. Apart from all these things, even if we take the statement of the Estate Manager as a Gospel Truth then also the assessee had demonstrated that it has not abandoned the building totally. It's staff was there and it was using the building partially.

17. As far as the 2nd limb of argument is concerned the building was the part of the assessee's block of assets' the ld. counsel for the assessee in this connection pointed out the details of block of assets available at page 11 of the paper book. The Tribunal in the case of Packwell Printers (supra) has considered a similar issue and observed as under :—

"20.1 Therefore, we hold that after the amendment by the Direct Tax Laws (Amendment) Act, 1986, with effect from 1-4-1988, the individual assets have lost its identity and for the purpose of allowing of depreciation, only the block of assets has to be considered. It has to be seen whether the particular block of assets is owned by the assessee and used for the purpose of business. If a block of assets is owned by the assessee and used for the purpose of business, depreciation will be allowed. Therefore, the test of user had to be applied upon the block as a whole instead of upon an individual asset. Now applying this test to the facts of the case under consideration, we hold that when the two trucks out of the three in the said block were admittedly used for the purpose of business, the said block of assets was used for the purpose of business and the depreciation has to be allowed on the WDV of the said block of assets, as per the percentage of depreciation prescribed in respect of the said block of assets. We direct the Assessing Officer to allow depreciation as per our above direction."

18. This order of the Tribunal was subsequently followed in the case of Natco Exports (supra ), etc. According to these decisions once the asset was part of block of asset and depreciation was granted on that block it cannot be denied in the subsequent year on the ground that one of the asset was not used by the assessee in some of the years. The user of the assets has to apply upon the block as a whole instead of an individual asset. Contrary to these decision no other decision was brought to our notice by the ld. Departmental Representative. In view of the above we allow both these grounds and direct the Assessing Officer to grant depreciation as well as other expenses i.e., maintenance and lift charges on SAPT building.

19. In the result the appeal of the assessee are partly allowed.