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TMI Blog1991 (9) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of road transport vehicles. When the matter was carried in appeal, the CIT(Appeals) agreed with the contention of the assessee that the fork lift trucks could not be regarded as road transport vehicles. He, however, upheld the disallowance on the ground that the assessee was engaged in the manufacture or production of articles or things mentioned in item No. 5 of Schedule 11th of the Act. Assessee is aggrieved. 3. It is contended on behalf of the assessee that the assessee is in the business of manufacture of aerated waters and bottling of the same. At the relevant time this activity of the assessee was not hit by item No. 5 of 11th Schedule. Item No. 5 at the relevant time reads as under : " Aerated waters in the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is contraindicative. The same is to come into operation from 1-4-1988 and the legislative intent to this effect has also been brought out in the note on clauses to the Finance Bill 1987. It is stated therein that clause 75 of the Finance Bill sought to amend item Nos. 5 22 of 11th Schedule to the Income-tax Act but the amendment would take effect from 1-4-1988 and would accordingly apply in relation to the assessment year 1988-89and subsequent years.The Board's clarification can leave no body in doubt regarding the scope of the amendment though initially the same has been described as a clarificatory amendment. Our attention is also invited to the decision in Second ITO v. Gannon Dunkerley Co. Ltd. [1989] 33 TTJ (Bom.) 379 in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard has no doubt stated that the amendment would come into force w.e.f. 1-4-1988 and would apply in relation to the assessment year 1988-89 and subsequent years, but it speaks about the amendment and not the amendments. The use of the word 'amendment' in the 3rd sub-para in singular has been done advisedly and it could refer to item No. 22 only which has also been amended and whose scope was also explained in 2nd para to 43 in the circular relied upon by the assessee. In such circumstances, assessee cannot claim that the explanation was not clarificatory and would apply to all pending assessments. 5. We have heard the parties to the dispute and in our view the claim of the assessee has to be accepted. That the fork lift truck is not a ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply in relation to the assessment year 1988-89. We are, having regard to the fact that item No. 5 and item No. 22 have been amended w.e.f. 1-4-1988, unable to buy the line of argument of the learned Departmental Representative that the amendment which would apply in relation to the assessment year 1988-89, can be only in regard to the amendment to item No. 22 because of the use of the word " amendment " in para 43(3) of the circular of the Board which is in singular. The reference to the amendment in para 43(3) can only be to the amendment of the 11th Schedule and cannot be taken as an amendment to item No. 22 of 11th Schedule to the exclusion of the item No. 5 of 11th Schedule which also stands amended. The view canvassed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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