Madras H.C : The cases which should have been filed are only three, as the questions referred are only for the three assessment years, viz., 1984-85, 1985-86 and 1986-87, as the Tribunal has rejected the prayer for reference of the questions for the years 1982-83 and 1983-84.

Counsel Appeared

T. Ravikumar, for the Revenue : V. Ramakrishnan, for the Assessee

JUDGMENT

R. JAYASIMHA BABU, J.:

Though five tax cases are filed, the cases which should have been filed are only three, as the questions referred are only for the three assessment years, viz., 1984-85, 1985-86 and 1986-87, as the Tribunal has rejected the prayer for reference of the questions for the years 1982-83 and 1983-84. Against that order rejecting the prayer for reference, there was no petition filed to this Court, and there is no order directing the Tribunal to refer those questions for those years as well.

The assessee is engaged in the business of running a restaurant. The Tribunal has held that it is entitled to investment allowance, the depreciation on building in which the restaurant is located, treating it as a plant, and that it is also entitled to extra-shift allowance for the assessment years. The correctness of the Tribunal has been called into a question by the Revenue.

Counsel for the Revenue submitted, and that submission was not controverted by counsel for the assessee that the building in which the restaurant is being run cannot be treated as a plant in the light of the decision of the Supreme Court in the case of CIT vs. Anand Theatres (2000) 160 CTR (SC) 492 : (2000) 244 ITR 192 (SC). The submission also is that the claim for extra-shift allowance which had been claimed on the building also, therefore, could not have been allowed. As regards investment allowance, the assessee is entitled to such allowance only in respect of the machinery installed in the light of the decision of the Supreme Court in the case of East India Hotels Ltd. vs. CIT (1996) 136 CTR (SC) 246 : (1997) 223 ITR 1 (SC) : TC S27.2815.

In the result, the first question is answered in favour of the assessee in so far as the machinery installed in the restaurant is concerned. The second and third questions are regarding treating the building as plant, and the claim for extra-shift allowance in relation to the building, are answered against the assessee and in favour of the Revenue.

[Citation : 252 ITR 858]