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TMI Blog1986 (8) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... and also on the ground that it is a plant and that the mining activity is one of industrial activity. The ITO referred to section 32A and observed that the assessee though may be an industry as recognised by small-scale undertaking cannot be said to be manufacturing or producing any article or thing and, therefore, is not an industrial undertaking so as to be eligible for claim of investment allowance. 3. Aggrieved, the assessee preferred appeals to the AAC, who relied on the orders of this Tribunal in the case of Associated Stone Industries, Kota Ltd. and came to the conclusion that the dumpers are plant and on the basis of the fact that the assessee is registered with the District Industries as industry, he came to the conclusion that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the original order of the AAC by which the matter was remanded back the department having not come up in appeal at present they are debarred from raising the issuing in appeal. He also relied on the order of the Tribunal in Hukam Singh Inder Mohan Singh v. ITO [1986] 18 ITD 1 (Delhi) (TM). 6. We have given a very careful consideration to the argument of the parties. At the out-set to the objection raised by the assessee's counsel of maintainability of the appeal of the department, we have only to observe that the AAC's observation in his order remanding back the matter was with a view to ascertain the facts and to decide the matter afresh. He has neither indicated as to what is the possible conclusion nor what should be the conclusion ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir circular dated 24-2-1975 then in that case the real character of the dumpers would be in the nature of plant. 9. In that case the case decided by the Ahmedabad Bench in Shiv Construction Co. [IT Appeal No. 1126 (Jp.) of 1981] for assessment year 1974-75 was also considered and relied upon. The reference was made to section 32A especially for consideration of the road transport vehicle. The observation of the ITO in that case was "what may be transport vehicles in the hand of one person, could be a tool of business in the hands of the other". The reference to the letter from the Board dated 24-2-75 along with which the Law Ministry's opinion dated 15-2-75 was also considered which was on the subject of allowing of development rebate on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wance one of the requirements that needs to be satisfied that the business carried on must be one of manufacture of production of any article or thing. The opinion of the Law Ministry by means of which dumpers are allowed development rebate was only to the extent that since dumpers were used in the business of mining for removal of over burden they were held to be plant. We have no disagreement with the opinion of the Law Ministry to the extent that it is a plant that dumper is a plant as far as the assessee is concerned but whether since they were allowed development rebate they could also be entitled to investment allowance on the same theory, to our mind, would not be wholly justified unless it can be held that mining is an activity wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ried from the earth. Thus, the stones which are brought out of the earth in a way can be said to be manufactured or produced. From this point of view it could possibly be concluded that mining is an industrial activity which involves manufacture or production of an article or thing. Perhaps, considering from this perspective, the small-scale industries department had treated the assessee as a small-scale industry. We, accordingly, have come to the conclusion that assessee is carrying on the manufacture of stones, and the dumpers being used in the mining of stones being a plant, is eligible for investment allowance under section 32A and we direct the ITO to claim to the assessee.
16. The appeal by the department fails. X X X X Extracts X X X X X X X X Extracts X X X X
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