B. P. JEEVAN REDDY, CJ.

( 1 ) UNDER Section 256 (1) of the Income-tax Act, 1961, the Tribunal has referred the following question for the opinion of this court:

"whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the cinema building and the tube lights together with fittings do not constitute plant within the meaning of Section 43 (3) of the Income-tax Act, 1961, and, consequently, the assessee was not entitled to development rebate thereon and depreciation at 10% on building?"

( 2 ) THE petitioner is running a cinema theatre in a pucca well constructed building fitted with all necessary fittings like tube-lights, furniture, fans, fire extinguishers and, other fixtures. The income from the said theatre is being assessed as business income in the hands of the assessee. The assessee claimed that the cinema building including its fixtures should be treated as "plant" for the purpose of depreciation and development rebate which was not acceded to by the income-tax Officer. An appeal preferred by the petitioner was dismissed by the Appellate assistant Commissioner. On further appeal, the Tribunal affirmed the view taken by the lowe

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