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3. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessee is entitled to depreciation at the rate applicable to a plant at 33 1/3rd on its buildings housing the safe deposit lockers ? "

8.2. Giving effect to the order of the Commissioner under Section 263 of the Act, the claim of the assessee with regard to the amounts collected towards sales-tax from the lessees as contingent deposit was disallowed and added to the assessee's income by the assessing officer invoking section 43B of the Act, as the same has not been paid to the Government. The claim of the assessee for treating the civil contributions to house safe deposit lockers as 'plant' was also rejected and depreciation was not allowed at 33 1/3 %, but only at a lesser rate. The assessing officer also disallowed the claim of the assessee towards the expenditure incurred on false ceiling, internal partition, etc. for lease hold and free hold buildings as revenue in nature. On appeal, the Commissioner upheld the order of the assessing officer with regard to the last two issues and the first issue was not dealt with by the Commissioner. The Tribunal, on appeal by the assessee, held all the three issues in favour of the assessee. Hence, the present reference with the questions referred to above.

8.7. The Delhi High Court, in the said case, where the assessee, being a banking company, claimed depreciation and development rebate in respect of safe deposit lockers, held that lockers were the primary safety article of a bank used for the purpose of carrying on the trade and fell within the expression "plant" and accordingly, confirming the order of the Tribunal, answered the reference in favour of the assessee and against the Revenue.

8.8. As the issue referred in the last question is already dealt with elaborately by the Delhi High Court in the decision cited supra, with which we are in full agreement, the reference is answered in the affirmative, against the Revenue and in favour of the assessee. T.C.(R) No.90 of 2001 (R.A.No.256/Mds/97) with reference to the assessment year 1990-91:

2. Whether on the facts and in the circumstances of the case the Tribunal was right in law in holding that the assessee is entitled as revenue deduction under sec.37 (1) the expenditure incurred by it in partitions, false ceilings, etc. in the assessee's own premises used for housing lockers ?

3. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessee is entitled to depreciation at the rate applicable to a plant at 33 1/3rd on its buildings housing the safe deposit lockers ?

4. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the expenditure incurred on false ceiling, partition, etc. in the assessee's lease hold premises were revenue in nature ? "

9.2. The assessing officer, while completing the assessment under section 143(3) of the Act, during the assessment year 1990-91, invoking section 43B of the Act, added the amounts collected by the assessee from the lessees on lease rentals as contingent deposit to the income of the assessee, as the same has not been paid to the Government. He also disallowed the claim of the assessee with regard to the depreciation on building housing lockers at 33 1/3% treating it as plant and also treated the partitions, etc. made for housing lockers as furniture and fixtures and allowed depreciation as such. On appeal, the Commissioner upheld the action of the assessing officer, but, on further appeal by the assessee, the Tribunal, following its earlier order, held the issues in favour of the assessee. Hence, the present reference with the questions referred to above.