Madhya Pradesh H.C : The assessee was entitled to investment allowance on the cost of tube-well

High Court Of Madhya Pradesh : Indore Bench

CIT vs. Bhandari Capacitors (P.) Ltd.

Section 32A

Asst. Year 1978-79

A.R. Tiwari & S.B. Sakrikar, JJ.

Misc. Civil Case No. 94 of 1988

14th December, 1995

Counsel Appeared

G. M. Chaphekar with Samvastsar, for the Assessee : D. D. Vyas, for the Revenue

A. R. TIWARI J.:

At the instance of the Department, the Tribunal has referred the undernoted question of law, under s. 256(1) of the IT Act, 1961, arising out of the order of the Tribunal dt. 30th July, 1986, passed in I. T. A. No. 527/(Ind) of 1984 :

“Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessee was entitled to investment allowance on the cost of tube-well ?”

Briefly stated, the facts of the case are that the assessee derived income from the manufacture and sale of capacitors. During the asst. yr. 1978-79, it claimed investment allowance on several items of plant and machinery which included a tube-well fixed by it. The authority disallowed the claim (annexure “A”). The appeal also proved to be vainful (annexure “B”). The assessee then filed the appeal before the Tribunal. The Tribunal held that the assessee was entitled to investment allowance on the cost of tube-well amounting to Rs. 5,660 (annexure “C”). Aggrieved, the CIT of, Bhopal, filed the application seeking reference of the question. The Tribunal has referred the question as referred to above.

We have heard Shri D. D. Vyas, learned counsel for the applicant-Department, and Shri G. M. Chaphekar, learned senior counsel with Shri S. S. Samvatsar for the non-applicant-assessee. It is not disputed that a tube-well is an apparatus with equipment necessary for drawing water from subterranean sources and that water so drawn was necessary for production as also for industrial labour. Tube-well thus manifestly falls within the meaning of “plant”.

The High Court of Calcutta in the case of CIT vs. Hindusthan Motors Ltd. (1988) 69 CTR (Cal) 197 : (1988) 170 ITR 431, has held that (at page 435) : “The only point to be considered is whether the cost of the tube-wells set up by the assessee in the assessment year involved came within the definition of the word `plant’. The definition of the expression `plant’in s. 43(3) of the IT Act, 1961, is a wide definition as in s. 10(5) of the earlier Act of 1922. The decisions cited on behalf of the assessee are clear and it cannot be contended that a tube-well set up by an assessee for the purposes of his business and utilised as such, will not be a plant within the meaning of s. 43(3) of the IT Act, 1961, and entitled to development rebate.

For the reasons as aforesaid, we are unable to accept the contentions of the Revenue. We answer question No. 2 in the affirmative and also in favour of the assessee.”

In view of the aforesaid factual matrix and legal position, we are satisfied that the Tribunal was right in law in holding that the assessee was entitled to investment allowance on the cost of the tube-well.

In the result, we answer the question in the affirmative, i.e., in favour of the assessee and against the Department.

The reference application is disposed of accordingly with no order as to costs. Counsel fee on either side shall, however, be Rs. 750, if certified.

A copy of this order shall be forwarded to the Tribunal under the seal ad signature of the Registrar of this Court.

[Citation:218 ITR 162]

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