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TMI Blog1983 (7) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... Sarabhai M. Chemical Division, Systronics Division and Telerad Division and Sarabhai Electronics Research Centre Division. The assessee had been allowed development rebate of Rs. 3,50,128 in the assessment year 1975-76 on the new plant and machinery installed by it. Similarly, the assessee had been allowed an investment allowance of Rs. 31,000 in the assessment year 1977-78 in respect of the new plants and machineries installed during that year. The ITO invoked the provisions of sections 34(3)(b) and 155(5) of the Income-tax Act, 1961 ('the Act') and withdrew the development rebate of Rs. 3,50,128 allowed in the assessment year 1975-76. Similarly, he passed an order under section 155(4A) read with section 32A(5) of the Act and withdrew t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the aforesaid authorities, he held that the action of the ITO was not justified. In this view of the matter, he cancelled both the orders passed by the ITO and allowed the two appeals filed by the assessee. 4. Aggrieved by the above order of the Commissioner (Appeals), the department is in appeal before us. Shri Roy Alphanso, the learned representative for the department, urged before us that the Commissioner (Appeals) was not justified in his decision because the cases cited before him by the assessee were clearly distinguishable on facts. He emphasised the fact that the provision of section 155(4A)/(5) comes into play immediately after the plants and machineries were sold or otherwise transferred. According to him, it was not necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h plant and machinery should be separately cited or found out by the department nor do we find anything in those sections to suggest that they do not apply when the plant and machinery are sold along with all other assets, of the industrial undertaking as a going concern. In the case before us, there is no doubt that the entire business was sold by the assessee as a going concern including the plants and machineries on which development rebate and investment allowance were previously allowed. The sale of the whole undertaking obviously includes the parts thereof and it cannot be said that while the whole undertaking has been sold, certain parts thereof remained unsold. Hence, we come to the conclusion that the ITO was quite correct in invok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs have been understated. Unless the consideration of the immovable properties were separately known, it could not be said as to whether the same was overstated or understated. Further, the sale in that case was at book value by a parent company to its subsidiary, and so, the Court held, that there was no material to show that the sale consideration of the immovable properties had not been truly stated. The facts of the case before us are entirely different. 8. Similarly, in the case of Artex Mfg. Co. it was necessary to know the particulars of each individual capital assets to find out whether there was any capital gains or balancing charge under section 41(2) of the Act. Those individual figures were necessary for calculating the arithm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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