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TMI Blog1996 (7) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... in N. C. Budharaja's case in [1993] 204 ITR 412 or by the observation of the Supreme Court touching the High Court's judgment in Bhageeratha Engineering Ltd.'s case and the dismissal of special leave petition in a still later judgment of the Supreme Court in Builders Associations of India's case [1994] 209 ITR 877, would be said to suffer from a mistake apparent from the record ? " The facts which are necessary for the disposal of this application are narrated below : The petitioner is a company known as "Bhagheeratha Engineering Ltd." engaged in civil construction of dams, structural engineering and other related activities. For the assessment year 1985-86, the assessee-company claimed investment allowance of Rs. 16,04,864 in respect of plant and machinery used for the purpose of its business newly installed. The case of the assessee is that the investment allowance was allowed by the Commissioner of Income-tax in the appeals relating to the earlier years. The Assessing Officer, however, denied the claim on the ground that the Revenue has filed further appeal before the Tribunal against the order of the Commissioner. On appeal, the Commissioner of Income-tax (Appeals) allowed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowance. We are, therefore, prevented from examining whether the requirements provided under the relevant provision regarding the claim have been satisfied in this case. The Commissioner of Income-tax (Appeals) says about the investment allowance thus : " The next ground of appeal is regarding the claim of investment allowance of Rs. 16,04,864. The appellant's representative stated that this issue has been decided in favour of the appellant by the Income-tax Appellate Tribunal, Cochin, in their own assessment for the assessment years 1980-81 and 1981-82 in Appeal No. 220 and 221 (Coch.) of 1985 dated January 30, 1987. Since, the issue is covered by the Income-tax Appellate Tribunal's decision mentioned above, the Appellate Assistant Commissioner is directed to allow the claim of investment allowance. " Here, too we do not see any discussion on factual materials. However, in the appeal filed by the Revenue against the above order, the Tribunal placed reliance on the decision of the Division Bench of this court in CIT v. Bhageeratha Engineering Ltd. [1992] 193 ITR 674 which was decided in the case of the same assessee for the assessment years 1980-81 and 1981-82 and accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment. The findings recorded in respect of an assessment year by the authorities under the Act cannot be said to be final and conclusive in so far as the subsequent assessment years are concerned. Such findings are final and conclusive only in respect of the particular assessment year which directly came up for consideration before the authorities concerned. In this case, we are directly concerned with the facts available in support of the claim for investment allowance in respect of the year 1985-86. For the purpose of the present case, it is most unsafe to rely on the materials available in a case which arose four years ago. It is further argued by counsel for the assessee that the claim for investment allowance is mainly in view of the provisions contained in sub-section (2) of section 32A. Hence, it may be claimed either under clause (b)(ii) or (b) (iii) of section 32A(2). The claim under section 32A(b)(ii) can be allowed only on satisfying two requirements, namely : (1) The assessee must be a small scale industrial undertaking. (2) The machinery or plant must be for the purposes of business of manufacture or for production of any article or thing. In order to claim t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p in mind the context since a word takes its colour from the context." The Supreme Court finally said in page 434 of the report thus : " We are, therefore, of the opinion that sub-clause (iii) of clause (b) of sub-section (2) of section 32A does not comprehend within its ambit construction of a dam, a bridge, a building, a road, a canal and other similar constructions." The Division Bench of this court in Bhageeratha's case [1992] 193 ITR 674, referred to the decision of the Orissa High Court in CIT v. Budharaja (N. C.) and Co. [1980] 121 ITR 212, and observed : " The court came to the conclusion that the construction of a dam itself was a manufacturing process. The above decision of the Orissa High Court has been reversed by the Supreme Court in CIT v. N. C. Budharaja and Co. [1993] 204 ITR 412. It is pointed out that the decision of the Division Bench of this court in Bhageeratha Engineering Ltd., case [1992] 193 ITR 674, has been affirmed by the Supreme Court in CIT v. Bhageeratha Engineering Ltd., [1993] 199 ITR 12. The argument is that the Supreme Court in that case had taken a contrary view to the one taken in N. C. Budharaja and Co. case [1993] 204 ITR 412, with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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