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TMI Blog1999 (9) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and in the circumstances of the case, the assessee is entitled to investment allowance on the computer installed ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact, - (i) in holding that the provisions of section 41(2) of the Income-tax Act are not attracted to the facts of the case ? (ii) in setting aside the order of the Commissioner of Income-tax (Appeals) on the above issue ? The factual position which is undisputed is as follows : The assessee is a public limited company. It is engaged in the business of refining crude oil. It claimed investment allowance on the computer installed by it for the assessment year 1984-85. There was a fire in its business premises on March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been lost sight of by the Tribunal. According to him the money received by the assessee after adjustment of written down value of the assets destroyed has to be brought to tax. Learned counsel for the assessee on the other hand, submitted that in fact no money was received and the insurance company who had insured the assets replaced the assets. That being the position section 41(2) of the Act has no application In order to appreciate the rival submissions a reference to section 41(2) of the Act is necessary. The said provision as it stood at the relevant point of time reads as follows : 41.(2) Where any building, machinery, plant or furniture which is owned by the assessee and which was or has been used for the purposes of busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section shall apply as if for the words 'actual cost', at the first place where they occur, the words 'actual cost as increased by twenty-five per cent. thereof' had been substituted. Explanation. - Where the moneys payable in respect of the building, machinery, plant or furniture referred to in this sub-section become due in a previous year in which the business or profession for the purpose of which the building, machinery, plant or furniture was being used is no longer in existence, the provisions of this sub-section shall apply as if the business or profession is in existence in that previous year." For determination of the question an agreement of the insurance company with the assessee needs to be noted. The relevant portion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by or on behalf of the company." This portion has been extracted by the Tribunal with reference to Policy No. 42310 / 0 / F / 5003. A communication was received from the insurance company on June 4 1984 and the same reads as follows : Ref : Fire Accident on 8-3-1984. Ref : Policy No, 42310/0/0/F/5003 and MSE No. 4510 / 0 / OPL / M-3301 and 51, 4510/0/0/OPL/M/5147 (MSE). We refer to the various discussions the under signed had with you in regard to the settlement of the insurance claim in respect of the buildings, machinery and other assets destroyed/damaged by fire on 8th March, 1984. The extent of the damage and destruction is being assessed by our surveyors. As already discussed with you, we are agreeable to repair, restore an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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