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TMI Blog1983 (11) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ur order in IT Appeal Nos. 221, 222 and 226 (Hyd.) of 1982, dated 18-7-1983. There we have considered the contentions of the revenue and the assessee and the various judicial pronouncements relied on by the parties. We had stated that after having considered the judgments relied on, the Benches of the Tribunal were eventually following the view which was approved of by the Gujarat High Court in CIT v. Surat District Co-operative Milk Producers' Union Ltd. [IT Application No. 81 of 1982, dated 28-3-1983], wherein the Gujarat High Court had approved of the action of the Tribunal in setting aside the order of the first appellate authority and restoring the matter to him for decision afresh in conformity with any decision the Supreme Court may render on the point relating to the challenge of amendment to section 80J. In view of such decision, the orders of the Commissioner (Appeals) for those years had been set aside and the matter restored to his file for decision afresh. For this year also, the facts being identical, we set aside the decision of the Commissioner (Appeals) on this point and restore the matter to his file. He would decide the point afresh in conformity with any decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of section 32A(4)(ii). The ITO referred to the permission sought by the assessee for creation of balance of reserve in the following year. According to the ITO, the provisions of section 32A did not contemplate any situation where the assessee could be permitted to make good a deficiency in reserve to be created. The assessee, it is stated, relied on the Explanation to section 32A(4) but the ITO held that the Explanation envisaged an entirely different situation, i.e., where the amount debited to the profit and loss account and credited to the reserve account was not less than the amount required to be so credited on the basis of the return made by the assessee but a higher deduction in respect of investment allowance became allowable from the total income as proposed to be computed by the ITO under section 143 of the Act. In this regard he stated : " In effect the Income-tax Officer can permit the assessee to make good the deficiency in the reserve in a subsequent year in cases where there is no sufficient income as per books in the relevant assessment year to cover the entire statutory reserve to be created and on regular assessment, the income determined by the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed on such assets. Apart from this, the Commissioner agreed with the ITO that creation of an additional reserve in the assessment year 1978-79 could not entitle the assessee to investment allowance on the diesel engine generator and the motor cars because reserve attributable to the value of such items had not been created in the accounts of the previous year under consideration. 5. Before us, the learned counsel submitted that under the provisions of section 32A(1)(b), grant of investment allowance was prohibited only in respect of ' road transport vehicles '. He relied on the definitions in section 2 of the Motor Vehicles Act, 1939, set out below : " 2. Definitions.---In this Act, unless there is anything repugnant in the subject or context,--- (16) ' motor car ' means any motor vehicle other than a transport vehicle, [omnibus], road-roller, tractor, motor cycle or invalid carriage ; (17) ' motor cycle ' means a two-wheeled motor vehicle, the unladen weight of which inclusive of the unladen weight of any detachable side car, having an extra wheel, attached to motor vehicle, does not exceed 600 kilograms ; (18) ' motor vehicle ' means any mechanically propelled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the carriage of goods solely or in addition to passengers ; " Thus, if at any time, in addition to passengers, goods were also carried, even if the vehicle was not let out on hire and even if the carrying of goods was an isolated instance, the vehicle in question would become a goods vehicle. In the present case, if there was such occurrence, the motor car would have become a goods vehicle under the Motor Vehicles Act and the moment it became a goods vehicle, it would become a transport vehicle within the meaning of section 2(33) and then it would become a ' road transport vehicle '. [For the proposition that even one or two isolated instances of transport of goods would render a vehicle a transport vehicle, see the decision In re, Manager, Indian Express AIR 1945 Mad. 440, referred to in State v. Ismail Alisaheb Awate AIR 1966 Bom. 119.] We are inclined to agree with the learned departmental representative that we cannot go by a definition applicable to a particular Act which gives a highly technical meaning to determine whether a motor car would be a road transport vehicle or not. A motor car is utilised for transporting passengers whether it be for hire or not. It plies on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end the profit and loss account of the particular previous year, then the assessee was precluded from making the debit and stood precluded from creating the reserve and claiming the consequent investment allowance. He, therefore, submitted that the decision of the Tribunal relied on clearly merited reconsideration. 9. The decision of the Tribunal referred to clearly applies to the facts of the present case and as a matter of judicial discipline, there being no contrary decision, we would follow the same. However, we proceed to decide the issue independently of the aforesaid decision also. The Explanation to section 32A(4) which permits in certain circumstances creation of a reserve in the accounts of the subsequent year, reads as under : " Where the amount debited to the profit and loss account and credited to the Investment Allowance Reserve Account under this sub-section is not less than the amount required to be so credited on the basis of the amount of deduction in respect of investment allowance claimed in the return made by the assessee under section 139, but a higher deduction in respect of the investment allowance is admissible on the basis of the total income as propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made up, by debiting the accounts of the year in which the notice has been served. In the present case factually, the reserve created by the assessee was adequate and fully covered the investment allowance claimed in the return filed under section 139. Thereafter, the assessee did not file any revised return but only made the revised claims for grant of higher investment allowance by filing statements. These statements are not equivalent to make a claim in the return. It is a claim de hors the return under section 139. Therefore, the assessee was not shut out from claiming the privilege allowed by the aforesaid Explanation. The assessee sought for permission. According to the ITO, the question of granting permission did not arise. Before the assessment was made, the assessee created a reserve. In these circumstances, we consider that the requirement of the Explanation on the facts of the case stood satisfied. The assessee would therefore, be entitled to the grant of investment allowance in respect of the generator. It would be open to the ITO to check up and verify the correctness of all figures before the grant of investment allowance on this asset. 10. The result is, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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