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TMI Blog2008 (8) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... estment" as defined in Explanation (4)(a)(v) to section 4A of the U.P. Trade Tax Act. The contention of the dealer that price or value of "know-how" shall also be included in "fixed capital investment" has not been found favour either with the Divisional Level Committee or with the Tribunal. The second dispute is with regard to the disallowance of the fixed capital investment of Rs. 12,60,000 for providing car parking to the engineers and other workers of the factory. The third and last grievance raised by the applicant is that instead of passing an order of remand to find out the investment made in canteen, the same should have been allowed by the Tribunal, as it was claimed. The Divisional Level Industrial Development Authority Committee (constituted under section 4A of the Act) through the Additional Director of the Industries, Greater Noida, Gautam Buddha Nagar allowed the investment of Rs. 96.41 crores as against the investment of 130 crores claimed by the applicant, vide eligibility certificate dated June 17, 1999 for the purposes of eligibility certificate under section 4A of the Act. The said order was challenged in appeal before the Tribunal and it was contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance was placed on a decision of the apex court in Scientific Engineering House (P) Ltd. v. Commissioner of Income-tax [1986] 157 ITR 86. Further reference was made to Commissioner of Income-tax v. Peas Industrial Engineers Pvt. Ltd. [1994] 205 ITR 447 (Guj). The learned senior counsel for the applicant on the strength of law as laid down in the case of Scientific Engineering House [1986] 157 ITR 86 (SC) submits that the functional test as indicated therein will be applicable. It is difficult to agree with him. On a reading of the judgment in the case of Scientific [1986] 157 ITR 86 (SC), it would show that it has no application to the controversy involved in the case even remotely. The issue involved therein was totally different and the said issue was decided by the apex court with reference to the facts situation as existed there in the light of the provisions of the Income-tax Act. The Supreme Court was called upon to interpret the collaboration agreement between the assessee therein and M/s. Metrimpex Hungarian Trading Company, Budapest, and to decide as to whether the payment made by the assessee was attributable partly or wholly towards the acquisition of a depreciable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of investment in know-how was not directly involved therein. He submits that investment made in foreign technician expenses and foreign travel expenses, etc., are quite different than that of the investment made in getting the know-how. The distinction pointed out by him has no substance. A fair reading of the paragraphs 66, 67 and 68 of the judgement clearly shows that the apex court has laid down that only such investments which have been made in value of land, building, plant and machinery, equipment, apparatus, components, moulds, dyes, jigs and fixtures have been included in the fixed capital investment and nothing else. The definition of "fixed capital investment" has been held to be exhaustive in the above case by the apex court. The view which I am proposing to take is further fortified from the observations made in para 68 of the report wherein it has been laid down by the apex court that the object of the scheme of exemption is to grant benefit by way of quid pro quo for the actual value of the assets brought into the State. The assets herein, as pointed out by the apex court means only such items or articles mentioned in Explanation (4) to section 4A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pace is not contemplated within the investment of building and in my view rightly so. It is not the case of the dealer that the provision for car parking is statutorily required under any particular statute. This being so, for the reasons given in the earlier part of this judgement with regard to the disallowance of technical know-how as also taking into consideration the ratio as laid down by the apex court in the case of Kajaria Ceramics [2005] 141 STC 406 (SC); [2006] UPTC 85, I find that there is no legal infirmity in the order of the Tribunal on this issue. The third and the last argument of the learned senior counsel for the applicant was with regard to the investment made in providing canteen to the workers. Under this head the applicant has claimed investment of Rs. 2,16,09,000. Before the Tribunal it was urged that since there are more than 250 workers in the factory, it is mandatory under section 46 of the Factories Act to provide canteen to the workers. Reference was also made by the Rules as framed by the State Government in this regard particularly rule 68 by the Tribunal. The requirement is that the employer shall provide neat and clean canteen to its workers. The ca ..... 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