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C.I.T. Lucknow v. M/S. Harbhajan Sarabjit & Associates Lucknow - INCOME TAX REFERENCE No. 77 of 1985 [2004] RD-AH 924 (28 September 2004)


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Court No.37

Income Tax Reference No.77 of 1985

Commissioner of Income Tax, Lucknow v.

M/s Harbhajan Sarbjit Associates, Lucknow

Hon'ble R.K.Agrawal, J.

Hon'ble Prakash Krishna, J.

(Delivered by R.K.Agrawal, J.)

The Income Tax Appellate Tribunal, Allahabad has referred the following question of law under Section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") for opinion to this Court:-

"Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was correct in law in holding that the tractors/trollies were not road transport vehicles and were, therefore, entitled to investment allowance under Section 32A of the Income Tax Act, 1961?"

Briefly stated, the facts giving rise to the present reference are as follows:-

The respondent assessee is a firm and is engaged in the work relating to construction of tunnel and minor irrigation projects. The work involved earth moving, rock cutting of tunnels, filling work and structural work relating to the construction of a Thermal Power Station. For the assessment year 1980-81, the Inspecting Assistant Commissioner (Assessment) rejected the claim of the respondent for deduction of investment allowance under Section 32A of the Act on tractors and trollies used in the assessee's construction works on the ground that the tractor represented road transport work vehicle. The Commissioner of Income Tax (Appeals) had held that under the Motor Vehicles Act, 1939, the tractor may be a motor vehicle, it was not to be used for carrying on passenger or goods. The Revenue's appeal has been dismissed by the Tribunal.

We have heard Sri A.N.Mahajan, the learned Standing Counsel for the Revenue.

It may be mentioned here that the Apex Court in the case of Commissioner of Income Tax v N.C.Budharaja and Co. and another, (1993) 204 ITR 412, has held that the activity of construction of dam or canal cannot be characterized as manufacture or producing article or articles and, therefore, the assessee is not entitled to investment allowance under Section 32A of the Act. Inasmuch as the investment allowance is not admissible under Section 32A of the Act to the respondent assessee in respect of the construction of tunnel and minor irrigation projects, the question of investment allowance under Section 32A of the Act would not arise on tractor/trollies.

In this view of the matter, we answer the question of law referred to us in the negative, i.e., in favour of the Revenue and against the assessee. There shall be no order as to costs.





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