H. N. Seth, J. - By this application under S. 256(2) of the Income-tax Act the assessee prays that the income-tax Appellate Tribunal be required to state the case in respect of the following question to this Court for opinion.
(1) Whether on the facts and in the circumstances of the Tribunal was legally correct in holding that the assessee had not claimed that its machines fall under the category of machines tools ?
(2) Whether on the facts and in the circumstances of the case the Tribunal was legally correct in holding that the automatic machines used for manufacturing the surgical blades are entitled for deprecation at 10% ?
(3) Whether on the facts and in the circumstances of the case Tribunal was legally correct in holding that the automatic machine used for manufacturing surgical blades are not machine tools ?
2. A perusal of the order passed by the Appellate Assistant Commissioner and the Appellate Tribunal shows that the counsel for the assessee had during the assessment proceedings climed that the assessee was entitled to a depreciation of 15% on the machinery that was being used by it in manufacturing surgical tools, as provided in Appendix A IIIB (8) (b) of the Rules framed under the Income-tax Rules. The Appellate Assistant Commissioner has pointed out that while claiming the rebate counsel for the assessee did not claim that the machinery was in fact a tool. The question whether the assessee claimed the item in respect of which depreciation was being claimed, to be a tool or not, is a question of fact. Further the Appellate Tribunal has in its judgment clearly stated that the assets on which the deprecation was claimed clearly implies that the Appellate Tribunal has affirmed the finding of the Appellate Assistant Commissioner that it was not a tool. This again in our opinion is a question of law.
2. We are therefore not satisfied that any of the three questions framed by the applicant are questions of law which arise from out of the appellate order of the Tribunal. There is no merit in this application. It is accordingly dismissed with costs.