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TMI Blog1989 (4) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... efusal of grant of investment allowance and they are : "(i) The claim was not made in original return submitted on 31-12-1981 but it was made in the return filed on 2-7-1988 which was invalid as the time for filing the original return had not been extended ; a revised return u/s 139(5) could not have been validly filed as the original return itself had not been submitted u/s 139(1) or u/s 139(2). (ii) Section 32A(2)(iii) specifically excludes plant and machinery used for manufacture of an article specified in the list in the Eleventh Schedule, for the purpose of grant of investment allowance and aerated waters in which blended flavouring concentrate in any form is used being item No. 5 of the Eleventh Schedule of the IT Act, the machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Hon'ble Calcutta High Court in the case of Mst. Zulekha Begum (Khatoon) v. CIT [1981] 129 ITR 560 was relied on. 18. Turning to the next point, that is, whether machinery used for the manufacture of cold drinks like Thumps Up, Limca, Gold Spot etc. is not entitled to the investment allowance as it falls within item (5) of Eleventh Schedule. He indicates that the claim of the assessee that is used synthetic flavouring essence and not any kind of blended flavouring concentrate is not disputed by the assessing officer or at least no material has been brought on record to dislodge the claim in this regard. Enunciating the arguments of the learned counsel of the assessee in this respect, the learned CIT(A) observed that in several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring, following ingredients are used : (1) Water (2) CO2 Gas (3) Essences (4) Colour (5) Saccharine (6) Sugar (7) Preservatives (8) Citric The Hon'ble Bombay High Court explained the learned CIT(A), had come to the conclusion, on the above facts, the assessee was not using any blended flavouring concentrate. The learned CIT(A) opined, the assessee in the present case is also manufacturer of aerated water and not using blended flavouring concentrate in any form. Therefore, embargo to item (5) of Eleventh Schedule is not applicable in this case. 20. It was submitted on behalf of the assessee before the CIT(A) that the Assessing Officer had also raised, in course of hearing before him, an objection that the assessee had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of orders on form No. 6 filed by the assessee on different occasions, he argued, assessing officer was justified in viewing mere filing of form No. 6 does not tantamount to grant extension. In his opinion, when no order has been passed, it cannot be said, the time was extended. Extension of time requires a positive act and it is not a penalty case that penalty has been imposed without refusal on the form of extension which was the subject matter of the decision relied by the CIT(A), Lachman Chaturbhuj Java's case. Coming to the validity of the return subsequently filed, captioned as revised return, as return filed u/s 139(4), the learned D.R. submitted that the stand taken by the CIT(A) is confusing, so far as he did not decide whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been made to contrary. We shall presume, necessary and prescribed particulars are in the record. 23. Now to enunciate whether the assessee's products are hit by embargo on item No. 5 of Eleventh Schedule, we must quote the relevant item itself as stated in the said schedule-- "Aerated waters in the manufacture of which blended flavouring concentrates in any form are used" (An explanation was appended to this item which is as under :-- "Blended flavouring concentrates shall include and shall deemed always to have included, synthetic essences in any form") (by Finance Act, 1987 w.e.f. 1-4-1988). We shall now discern the decision of CIT(A) in the facet of aforesaid "explanation". No doubt, their Lordships of Bombay High Court had dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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