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JUDGMENTS                                                ITR 5/1994                                              Back to Index

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.
I.T.R5/94

Date of decision: 27 April, 2000

Commissioner of Income-tax, v M/S Devans Modern Breweries,Amritsar.
Coram:
The Hon’ble Mr. Justice Dr. B. P. Saraf, Chief Justice.
The Hon’ble Mr. Justice Arun Kumar Goel, Judge.

Whether approved for reporting: Yes.
For the Appellant(s)/Petitioner(s): Shri D. S. Thakur, Advocate.
For the Respondent(s): Shri R. K. Gupta, Advocate.

JUDGEMENT AND ORDER

Per Dr. B. P. Saraf, Chief Justice (Oral).

By this application under section 256(2) of the Income-tax Act, 1961, the Commissioner of Income-tax seeks a direction to the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar ("Tribunal") to refer the following three questions of law to this Court for opinion:

"i.Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in directing the Assessing Officer to grant investment allowance on Transformer?

ii. Whether the Tribunal has not failed to appreciate that the Transformer was used mainly in the production of alcoholic drinks which is listed in the Eleventh Schedule and its incidental use in the manufacture of ice did not earn for the assessee the deduction under section 31A?

iii.Whether the Tribunal was justified in law in holding that the converse of section 32(2A) is true which it has held impliedly by its decision?"

We have heard the learned counsel for the parties. There is no dispute about the fact that the controversy in regard to grant of investment allowance under section 32A of the Income-tax Act, 1961 ("Act") on transformer used for the purpose of production of alcoholic drinks has already been settled by this Court in a reference in the case of the very same assessee, being ITA No.35/94 dated 9.8.1999, for an earlier assessment year. In that case, it has been held that the transformer in question having been purchased for being used for the purpose of production of alcoholic drinks, which was the main business of the assessee, the assessee was not entitled to investment allowance under section 32A of the Act in respect thereof. Learned counsel for the parties are agreed that in view of the above decision of this Court, the question in regard to grant of investment allowance in respect of transformer in the case of the assessee stands concluded in favour of the revenue and against the assessee.

In view of the above and having regard to the fact that the controversy pertains to assessment year 1983-84, we are of the opinion that no fruitful purpose will be served by calling for a statement of the case and directing the Tribunal to refer the questions of law set out above arising of its order for our opinion. It will be in the interest of all concerned to straightaway answer the question arising out of the order of the Tribunal by dispensing with the procedural part.

Accordingly, question No.1 set out above is deemed to have been referred by the Tribunal to this Court and following the decision of this Court cited above, the same is answered in the negative, i.e., in favour of the revenue and against the assessee. As a result, the assessee would not be entitled to investment allowance on the transformer. The Tribunal erred in allowing the same.

This application is disposed of accordingly.

Let a copy of this order be sent forthwith to the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar for information and necessary action.