K. Shivashankar Bhat, J.—The question referred to us under the provisions of the Income Tax Act, 1961, reads thus :

" Whether, on the facts and in the circumstances of the case, the assessee is entitled to depreciation at ten per cent. on the nursing home building on the ground that it is a 'plant' ?"

2. The assessee is an individual and is a medical practitioner. He is running a nursing home in respect of which he claimed depreciation allowance at ten per cent. for the assessment year 1983-84. The building was constructed during 1979-80. For the earlier year, depreciation was allowed at five per cent. treating it as a second class building. For the year 1983-84, the assessee put forth the claim that either it is a factory building or a plant entitling him to depreciation at ten per cent.

3. The Income Tax Officer did not accept the assessee's case that the life of the building was reduced by the heat generated in the canteen and sterilisation room ; according to the Income Tax Officer, even in respect of cinema theatres and lodgings, depreciation is not allowed at more than five per cent. The Commissioner of Income Tax (Appeals) affirmed this order. The Appellate Tribunal,