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TMI Blog1992 (1) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Ahmedabad. The appellant remained under a bona fide belief that the said Chartered Accountant must have carried out the instructions by filing the appeals for both the years. The appellant firm had also filed an appeal on the similar points for asst. yr. 1981-82 before the Tribunal through Shri Virendra Shah, Chartered Accountant of Vishnagar, who in turn had entrusted the matter to Shri N.R. Divatia of Ahmedabad. The appeal on similar point for asst. yr. 1981-82 was heard and decided by the Tribunal. The appellant firm, therefore, enquired from said Shri Arvindbhai A. Thakkar as to when the appeals on the same point in asst. yr. 1983-84 and 1984-85 would be taken up for hearing by the Tribunal. Thereafter Shri A.A. Thakkar searched hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction work such as dams, canals or tunnels. In the case of the assessee it is an undisputed fact that the dumpers are used for road construction and the very nature of such a work cannot be graded as earth moving machinery used in performing such heavy construction work. He, therefore, directed the ITO to grant depreciation on the cost of dumpers at the rate of 15 per cent. The point relating to grant of deprecation on the cost of dumper at higher rate relates to both the years under consideration. The CIT further observed that in asst. yr. 1983-84 investment allowance has been allowed on the cost of dumpers and the water tank which is not admissible. 5. The learned counsel for the assessee contended that the question of higher depre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cost of dumper and the water tank. The CIT has not withdrawn grant of investment allowance on other items of plant and machinery, which had been allowed by the ITO. It is also an undisputed fact that both dumpers as well as water tank have been accepted as plant by the Department by allowing depreciation thereon by treating the assets as plant. Once it is accepted that the assessee is carrying on an undertaking doing the business of construction and its eligibility for grant of investment allowance in respect of other items of plant and machinery has been accepted, there is no justification in denying investment allowance on these two items of plant. 5.1 The learned counsel also relied upon the decision in the case of Shyam Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntative submitted that only the point relating to grant of higher depreciation on the cost of dumper is covered by the earlier decision of the Tribunal in the case of the assessee. The Department has not accepted the said order. He submitted that investment allowance on the cost of dumpers and water tanks has been allowed by the ITO without making any enquiries and without applying his mind about the fulfilment of various conditions for grant of such allowance. A perusal of the assessment order clearly reveal that there is no discussion about the grant of investment allowance in respect of cost of water tank. The failure to conduct any enquiry before grant of such allowance clearly renders the order of the ITO to be erroneous and prejudicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as earth moving machinery employed in heavy construction works such as dams, tunnels, canals etc. The description in the relevant entry of depreciation schedule is only illustrative and not exhaustive since the word used is etcetra. Respectfully following the aforesaid decisions of the Tribunal we hold that the ITO was justified in allowing depreciation on the cost of dumpers at the rate of 30 per cent and additional depreciation at 15 per cent. 7.2 As regards investment allowance on the cost of dumpers and water tank used by the assessee in its business of construction, we are of the view that the ITO had rightly allowed investment allowance on the cost of dumpers and water tank. Both these items have been treated as items covered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d fully supports the view that the 'industrial undertaking' for the purposes of grant of investment allowance may be any one of the categories viz. 'business of construction', 'business of manufacture', 'business of production' of any article or thing not specified in the XI Schedule. It cannot be denied that the assessee is carrying on the business of construction,—an integrated and complicated business in a systematic manner. The dumpers are admittedly used in the said business of construction. The water tank is also meant for meeting the requirement of water for the said construction business. Such provisions should be construed in a liberal, wide and practical sense. Such view is fully fortified by the judgment of Hon'ble Kerala High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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