TMI Blog1999 (5) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... case the learned CIT(A) has erred in restricting the additional depreciation to 75 per cent of the dumpers used as mining machinery. (2) That under the facts and circumstances of the case the learned CIT(A) has erred in not allowing investment allowance on dumpers when the facts of the case are entirely different than that of the case cited by the learned CIT(A)." 2. The first ground of appeal taken by the assessee is against restricting the depreciation to 75 per cent on the dumpers used as mining machinery by invoking the provisions of s. 38(2) of the IT Act. It is, therefore, considered reasonable and justified to go through the provisions of s. 38(2), which reads: "Sec. 38(2) Where any building, machinery, plant or furniture is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment allowance on dumpers. The CIT(A) has disallowed the claim of the assessee on investment allowance by applying the ratio of the decision of the Hon'ble Supreme Court in the case of CIT vs. N.C. Budharaja Co. Anr. etc. etc. (1993) 114 CTR (SC) 420 : (1993) 204 ITR 412 (SC). In this connection, it is observed that the facts in the case of N.C Budharaja Co. were altogether different than the facts of the appellant. In the case decided by Hon'ble Supreme Court, the company carried on construction of dams, canals and bridges and hence their Lordships of the Supreme Court were of the opinion that since the company did not produce or manufacture any article or thing, it was not entitled to investment allowance. What their Lordships of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in the reference filed by the Revenue against the orders of the Tribunal. 5. In view of these facts, we are of the opinion that the CIT(A) was not justified in rejecting the claim of the assessee on account of investment allowance on dumpers, which are mining machinery in the case of the assessee. This ground of the assessee is, therefore, allowed. 6. Coming to the appeals filed by the Revenue in ITA Nos. 282 283/Jp/1996, which are on the following common ground of appeal: "On the facts and in the circumstances of the case, the learned CIT(A), Ajmer has erred in allowing additional depreciation to the extent of 75 per cent on dumpers treating them mining machinery." 7. We have discussed this ground of appeal while deciding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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