9911796707
TMI Blog2002 (12) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... er afresh - - - - - Dated:- 10-12-2002 - Judge(s) : N. V. BALASUBRAMANIAN., K. RAVIRAJA PANDIAN. JUDGMENT The judgment of the court was delivered by N.V. BALASUBRAMANIAN J.-These are references on the basis of the directions of this court under section 256(2) of the Income-tax Act, 1961 (herein referred to as "the Act"), and the question of law referred to us reads asunder: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is right in law in holding that the assessee is entitled to deduction under section 32A on the plant and machinery used in construction work?" Though there are three tax case references, the assessment year involved is common, viz., 1982-83. The Assessing Officer completed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) relied upon the decision of the Orissa High Court in CIT v. N.C. Budharaja and Co. [1980] 121 ITR 212, in taking the view that the assessee was entitled to the investment allowance under section 32A of the Act. The Revenue aggrieved by the order of the Commissioner of Income-tax (Appeals) preferred a separate appeal before the Income-tax Appellate Tribunal. The Commissioner of Income-tax (Appeals), while deciding the point of investment allowance in favour of the assessee, dismissed the appeal preferred by the assessee on other points. The assessee preferred independent appeals against the order of the Commissioner of Income-tax (Appeals) and that is why there were three appeals before the Income-tax Appellate Tribunal and, conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t gone into the factual matter as there is nothing in the order of the Tribunal to show the basis on which the Tribunal came to the conclusion that the assessee was entitled to investment allowance. In an unreported decision of the Supreme Court in Asia Foundations and Constructions Limited v. CIT dated November 17, 1994, the Supreme Court after taking note of the decision of its own decision in the case of N.C. Budharaja and Co. [1993] 204 ITR 412 has held as under: "We find that even the Tribunal's order does not indicate fully and appropriately the facts and circumstances of the case on which the aforesaid question of law arising for decision in the present case was decided by it. As earlier stated there is no reference to the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to investment allowance. Since we are remitting the matter, the order of the Appellate Tribunal setting aside the order of the Commissioner of Income-tax passed in revision is not sustainable in law. Hence, we are not answering the question of law referred to us, but the matter is remitted to the Appellate Tribunal to consider the entire matter afresh. It is made clear that it is open to the parties to place fresh material before the Tribunal and it is also open to the Appellate Tribunal to remit the matter to the assessing authority, if it so feels. With the above observations, all the tax case references are disposed of. However, in the circumstances of the case, there will be no order as to costs. - - TaxTMI - TMITax - Income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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