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TMI Blog1995 (7) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the case, the Income-tax Appellate Tribunal is correct in law in holding that the assessee was entitled to the claim of investment allowance ? " The respondent (hereinafter referred to as "the assessee") is a private limited company engaged in the business of running a hotel and restaurant. In respect of the aforenoted assessment years it claimed that it was an industrial undertaking involved in the manufacture or production of various foodstuffs in its restaurant and was, therefore, entitled to investment allowance under section 32A of the Act for both the years. Relying on a Central Board of Direct Taxes Circular and the decision of the Kerala High Court in the case of CIT v. Casino (P.) Ltd. [1973] 91 ITR 289, the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see and allow investment allowance as indicated above since the break-up figure of plant and machinery was not given. Before us no case-law to effectively counter the aforesaid decision in the case of Orient Express Co. P. Ltd. relied upon by the assessee and based on which the order impugned has been passed, has been cited by the Revenue. In the absence thereof, we have no other go than to sustain the order impugned. " (emphasis supplied by us). Thus, the Tribunal held that hoteliering was an industry and that the plant and machinery used for the purpose of production of foodstuffs and beverages and crockery, cutlery and furniture used in the places of eating were entitled to investment allowance. Aggrieved, the Revenue preferred an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssarily answered in the affirmative. It is well-settled that when the question referred or proposed to be referred speaks of " on the facts and in the circumstances of the case " it means on the facts and circumstances which are found by the Tribunal and not the facts and circumstances that may be found by the High Court on a reappraisal of the evidence unless a specific question assailing the findings of fact recorded by the Tribunal is raised and, therefore, to that extent, there is no quarrel with the proposition put forth by Mr. Aggarwal, but from a bare perusal of the above extracted portion of the Tribunal's order, it is evident that neither the Tribunal nor the Commissioner addressed himself to the facts of the instant case. The on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact that the assessee did use its machinery in the manufacturing and processing of various materials used in its construction activity and it was also an industrial undertaking. No such finding has been returned by the Tribunal in the instant case and as noted above the entire case proceeded on a purely legal proposition. We are of the considered opinion that the order of the Tribunal gives rise to a question of law inasmuch as it involves the interpretation of section 32A of the Act. We, therefore, direct the Tribunal to state the case and refer the following reframed question to this court : " Was the Tribunal right in holding that the assessee carrying on a hotel business was entitled to investment allowance under section 32A of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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