TMI Blog2003 (6) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... e chambers, after giving opportunity to the parties. - - - - - Dated:- 11-6-2003 - Judge(s) : D. K. SETH., R. N. SINHA. JUDGMENT D.K. SETH J.-In this case the question arises as to whether a building of a cold storage is a plant. Mr. Soumitra Pal, learned counsel appearing for the Revenue, had sought to draw a distinction between a plant and a building. According to him, if it is a setting or canopy for sheltering a particular business, then it would not be a plant. The building has a more durability than a plant. Therefore, only the thermocole part of the building is the plant and not the rest. He relied on the decision in CIT v. Anand Theatres [2000] 244 ITR 192 (SC). Seeking to make a distinction on the facts, he drew inspiration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ools for carrying on the business. Each case has to be decided on its own merits. In the said decision, it was held that in the rarest of rare cases, a building can also be a plant provided it satisfies the test. Running a cold storage is governed by the West Bengal Cold Storage (Licensing and Regulation) Act, 1966, and the West Bengal Cold Storage (Licensing and Regulation) Rules, 1967, in West Bengal. Without a licence, no cold storage can be commissioned nor can continue to function. The running of the cold storage is closely monitored and maintained under the said provisions of the 1966 Act and the 1967 rules as amended from time to time. Under section 4(6), a licence can be cancelled for breach of any of the conditions of the licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the provisions of the Act and the Rules. Before the grant or renewal of the licence, the licensing officer may direct the execution of any repairs to and alteration in the cold storage to be licensed with regard to a structure, insulation, refrigeration, sanitary or any other arrangements as may be necessary for the purposes of the Act and the Rules as specified by the licensing officer by an order in writing. Under clause (e), a licensee is liable to provide facilities or assistance as required by the licensing officer or any officer authorised by him in writing in this behalf, for entering, inspecting or examining the cold storage, for examining or inspecting the machinery and equipments, etc. Under rule 11, the licensee is bound to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of rule 11. For the purpose of renovation or improvement of insulation, refrigeration and sanitary arrangements or for additions and alteration, subservient to the purposes of the Act and Rules, prior approval of the licensing officer is necessary. Thus, it appears that the storage or the chamber itself is an apparatus and tool of the trade through which the business is carried on. The building of the cold storage housing the chamber is neither a setting nor a canopy. On the other hand, it is the means or apparatus or the tools for the business. It is not only the insulation for which specification is provided for. On the other hand, the walls, roofs of the building are to be constructed or maintained in a particular manner, which is ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he chamber where the goods are stored. Thus, a cold storage building stands altogether on a different footing from a hotel or a theatre accommodating the customers and audiences which are distinctly the setting or canopy or shelter used for the business without requiring any strict specific particulars and designs and system distinctly required for cold storage. Therefore, in our view, the chambers of the cold storage are definitely plant as defined in section 43(3). We had occasion to deal with this question in CIT v. Birla lute and Industries Ltd. [2003] 260 ITR 55 (Cal), therein we had held that the word "plant" is defined in section 43(3) of the Act. It is not an exhaustive definition. It is an inclusive definition. It includes any ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is used and utilised as chamber for storing the goods in cold storage that would be treated as plant. Rest of the building would not be a plant. It depends on the facts and circumstances of each case and has to be decided having regard to the specification therein. In the circumstances, we remit the matter to the learned Tribunal for deciding the case afresh in the light of the observation as made hereinabove in order to allow at 33.33 per cent. on the part of the cold storage building housing the chambers, after giving opportunity to the parties. This reference is answered in the affirmative, in favour of the assessee as held above and is thus disposed of. All parties are to act on a Xerox signed copy of this dictated order on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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