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TMI Blog2006 (12) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... A/3B), the Income-tax Appellate Tribunal was right in law in holding that the driver's salary was not to be included while working out the disallowance under section 37(3A) of the Income-tax Act, 1961?" RA No. 293 "(i) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in allowing the assessee's claim on account of leave with wages/salary in spite of the fact that it was simply a provision and a contingent liability? (ii) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in holding that the refinery units of the assessee-company as industrial undertaking for the purpose of investment allowance?" 2. The Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer the questions referred as under : Re : Question in RA No. 292 7. Learned counsel for the Revenue relied upon the judgment of the hon'ble Supreme Court in Britannia Industries Ltd. v. CIT [2005] 278 ITR 546 ; [2005] 5 RC 619, wherein the question of interpretation of section 37(3B) of the Act in the context of disallowance for guest house was examined and it was held that the said provision being a special provision, the disallowance will apply irrespective of other provisions. Contrary view taken by the Full Bench of the Kerala High Court in CIT v. Travancore Cements Ltd. [1999] 240 ITR 816, wherein distinction was made between the expression "repairs" used in section 31 of the Act and the expression "maintenance" used in section 37(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness or profession, then it would not have felt the need to amend the provisions of section 37 so as to make a definite distinction with regard to buildings used as guest houses as defined in sub-section (5) of section 37 and the provisions of sections 31 and 32 would have been sufficient for the said purpose. The decisions cited by Dr. Pal contemplate situations where specific provision had been made in sections 30 to 36 of the Act and it was felt that what had been specifically provided therein could not be excluded under section 37. The clarification introduced by way of sub-section (5) to section 37 was also not considered in the said case." 8. Learned counsel for the assessee, inter alia, relied upon the judgments in National Engine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enance of motor cars". Reading the provision as a whole, the distinction sought to be made out is not material. The expression "running and maintenance of motor cars" would clearly include the expenditure on hiring a drive for running, the said motor car. 11. Accordingly, the question referred is answered in favour of the Revenue and against the assessee. Re : Q. Nos. (i) and (ii) in RA No. 293 : 12. Learned counsel for the assessee submitted that the questions in RA No.293 came up for consideration in the case of the assessee for the earlier assessment year and were decided in favour of the assessee. The said case is reported in CIT v. Oswal Woollen Mills Ltd. (No. 1) [2002] 257 ITR 737 (P & H), wherein the earlier order of this court i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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