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TMI Blog1986 (8) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... -connected, so much so that the contention and submissions of the parties are also common. 3. The relevant facts, in brief, are that the assessee as a registered firm. The assessment year involved is 1984-85, the previous year of which is ending 30th Sept., 1983. The business of the assessee is that of hotel. 4. The assessee filed the return of income for the assessment under consideration and made claim inter-alia for investment allowance on plant and machinery used in the business of the assessee under s. 32A of the IT Act, 1961 (here-in-after referred to as the Act). The ITO did not allow the claim of the assessee for the reasons mentioned in his order inter alia that the investment allowance claimed by the assessee on Aircondition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) 144 ITR 12 (Mad) and Hon'ble Kerala High Court in the case CIT vs. Casino Pvt. Ltd. (1973) 91 ITR 289 (Ker) as well as on the decision of the Tribunal, Madras Bench 'C' Madras in the case Kanakadhara Industries vs. Third ITO, (1984) 19 TTJ (Mad) 411 : (1984) 7 ITD 142 (Mad). 7. On the other hand, Shri P.N. Arora, the ld. counsel for the assessee relies on the order of the AAC and on the decisions of Hon'ble Madras High Court in the case CIT, Tamil Nadu III vs. Engine Valves Ltd. (1980) 19 CTR (Mad) 274 : (1980) 126 ITR 347 (Mad) and Hon'ble Delhi High Court in the case Punjab National Bank Ltd. vs. CIT, Delhi-I, (1983) 141 ITR 886 (Del). He further contends that it is nowhere disputed by the ITO that the assessee is not industrial und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds "goods" used in s. 2(7) (d) of the Finance Act, 1966 has been used in the sense of merchandise, i.e. articles for sale, and so understood in a commercial sense, the expression, "goods" will not include eatables prepared in a hotel. Further, the expression "manufacture" does not connote a trading activity and an activity carried on in a hotel can only be taken to be a trading activity and not a manufacturing activity." Their Lordships of Hon'ble High Court in deciding the case mentioned above, have applied in decision of Hon'ble Kerala High Court in the case CIT vs. Casino (Pvt.) Ltd. (1973) 91 ITR 289 (Ker) wherein their Lordships of the Hon'ble Kerala High Court has taken the view that the expression "manufacture of goods" referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court in East India Cotton Manufacturing Co. Pvt, Ltd. vs. Assessing Authority-cum-Excise and Taxation Officer (1972) 30 STC 489, but that question again does not arise as the judgment in East India Cotton Manufacturing Company Pvt. Ltd.'s case was under the Sales-tax Act, which has no bearing so far as the case in hand is concerned. 12. In the case Kanakadhara Industries vs. Third ITO (1984) 19 TTJ (Mad) 411 : (1984) 7 ITD 142 (Mad) the Madras Bench 'C' of the Tribunal, has taken the view that the decision under other Acts on the identical issue has no bearing on the issue to be decided under the IT Act. 13. In the case of South Bihar Sugar Mills Ltd. vs. Union of India AIR 1963 SC 922, their Lordships defined or described the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under s. 32A(b)(ii) and (iii) r/w its explanation (2), which is here-in-after reproduced for ready reference, "(2) The ship or aircraft or machinery or plant referred to in sub-s. (1) shall be the following namely (b) any new machinery or plant installed after the 31st March, 1976, (ii) in a small scale industrial undertaking for the purposes of business of manufacture or production of any article or thing, or (iii) in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing, not being an article or thing specified in the list in the Eleventh Schedule. Expln. (2) an industrial undertaking shall be deemed to be a small-scale industrial undertaking if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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