TMI Blog2010 (1) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of 'fixed capital investment' is not identical and is restricted to 'fixed assets'? Held that:- The manufacture of soft drink, the bottles and crates are essential apparatus especially in a captive industry where the liquid which is prepared and collected by way of a continuous process in the bottles and thereafter kept it in crates and therefore they (bottles and crates) are to be accepted as "apparatus" within the meaning of Explanation (4)(b)(i) to section 4A of the U.P. Trade Tax Act. Thus the questions in respect of it being treated as "fixed capital investment" are to be answered in favour of the assessee and against the Department. The order passed by the Tribunal enveloping that part of the order passed by the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bihar Deferment Rules, where the definition of 'fixed capital investment' is not identical and is restricted to 'fixed assets'? (ii) Whether the Trade Tax Department having allowed the investment made in bottles and crates to other beverages manufacturing units, namely, Brindaban Agro Industries Ltd., there is no justification whatsoever for the Tribunal in reversing the order of the Divisional Level Committee as the Divisional Level Committee has taken unanimous and identical decision in the case of the other beverages manufacturing units? (iii) Whether the appeal filed on behalf of the Commissioner, Trade Tax, being confined only to investment made in bottles and crates being included in the fixed capital investmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 107 kms. distance stone, AgraDelhi Highway at Village Dautana, Tehsil Chhatta in the district of Mathura. The new unit established by the assessee applied for the grant of eligibility certificate under section 4A of the U.P. Trade Tax Act read with Notification No. 640 dated February 21, 1997. According to the assessee, it made an investment of more than Rs. 50 crores. The assessee was granted an eligibility certificate on May 26, 2000 by the Divisional Level Committee constituted under section 4A of the Act. The exemptions were granted to the assessee for a period of ten years running from April 15, 1999 to April 14, 2009 or to the extent of 200 per cent of the fixed capital investment of Rs. 53,79,49,612, whichever was earlier. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of determining value of plants including captive power plant, machinery, equipment, apparatus, components, moulds, dyes, jigs and fixtures only the following shall be taken into account: (i) investment, whether by means of purchase, hire or lease in such plant, equipment, apparatus, components and machinery, as is necessary for the establishment or running of the factory or workshop; The review application of the assessee was allowed by the order of the Divisional Level Committee on April 10, 2001. It is the assessee's case that even though the Trade Tax Department made no demur before the Divisional Level Committee nor any dissent, yet the Commissioner, Trade Tax filed an appeal against the order dated April 10, 2001 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which are used for collecting the liquid soft drink are absolutely essential for the running of the beverage factory and therefore should be included within the meaning of apparatus used for the Explanation itself. The learned counsel for the assessee has relied on a decision in the case of Commissioner of Income-tax v. Saurashtra Bottling Pvt. Ltd. reported in [1998] 232 ITR 270; [1998] 147 CTR 115 wherein also the Gujarat High Court has come to the conclusion that bottles and shells (crates) were essential for the manufacture of soft drink and therefore they would be treated as fixed capital investment . The learned standing counsel on the other hand has relied on Bihar's case [1999] 112 STC 185 (SC) and has said that bott ..... X X X X Extracts X X X X X X X X Extracts X X X X
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