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TMI Blog2003 (12) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of investment allowance under section 32A of the Income-tax Act, 1961, as the nursing home/hospital of the assessee is not an industrial undertaking? 2. Whether, on the facts and in the circumstances of the case, is not the decision of the Tribunal in directing deletion of the addition made under section 68 of the Income-tax Act, 1961, placing reliance on the decision of the Delhi High Court in the case of Stellar Investment Ltd [1991] 192 ITR 287 as erroneous and perverse?" The assessee, M/s. Down Town Hospital Limited, is a nursing home situated at Mathura Nagar, Guwahati. For the assessment years 1989-90 and 199091, the assessee-company claimed investment allowance of Rs. 6,30,000 and Rs. 6,62,654, respectively, under section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s affirming the assessee's claim. We have heard Mr. U. Bhuyan, learned counsel for the appellant, and also Mr. R.P. Agarwalla, learned senior counsel for the respondent-assessee. The first question relates to the claim of investment allowance on medical equipment, air-conditioner, lifts, office equipment, etc. This court in CIT v. Dr. M.L. Agarwalla [2002] 258 ITR 102 had occasion to deal with a similar situation. The assessee in that case was a radiologist engaged in the business of radio diagnostics. He had claimed deduction of certain amount under section 32A of the Income-tax Act, 1961. The Assessing Officer rejected the claim in respect of ultrasound medical diagnostic electrical equipment, air-conditioner and voltage stabilizer on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... electrical equipment, air-conditioner and servo voltage stabilizer and not for the entire establishment. The decision of the Rajasthan High Court in CIT v. Trinity Hospital [997] 225 ITR 178 was rendered taking into consideration the ratio in Dr. V. K. Ramachandran [1981] 128 ITR 727 of the Madras High Court and Shaw Wallace and Co. Ltd. [1993] 201 ITR 17 of the Calcutta High Court. The nature and character of the equipment purchased and installed by the assessee in the instant case are identical and these are being used for the purpose of intensive study of the internal condition of the body which comes out in black and white and assists in proper diagnosis after expert scrutiny. If we go by the ratio available in Shaw Wallace and Co. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egorious Memorial Muthoot Medical Centre v. CIT [2003] 261 ITR 443 (Ker), the question for consideration before the High Court was whether the Tribunal was justified in denying the investment allowance of E.C.G. machine, x-ray unit and other laboratory equipment. The Kerala High Court allowed the investment allowance for the reasons quoted herein-below: "The question that is posed for consideration is whether the assessee is entitled to get investment allowance for various equipment it has installed in the hospital. The relevant provision which is to be construed is sections 34 and 32A(2)(b). On going through the above-mentioned provisions, two conditions are to be satisfied so as to become eligible for allowance as regards machinery is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 997] 225 ITR 178 (Raj) and CIT v. Upasana Hospital [1997] 225 ITR 845 (Ker) answered the question in favour of the assessee." It is clear from the aforesaid judgments that investment allowance has been permitted in respect of medical equipments, air-conditioners, voltage stabilizers, etc., particularly, because of preponderance of various judicial pronouncements and desirability of uniformity in the decision. It is pertinent to mention here that the Kerala High Court while rendering the aforesaid decision took into consideration the decision of this court rendered in CIT v. Dr. M.L. Agarwalla [2002] 258 ITR 102. On the factual matrix of the case at hand and keeping in mind the decisions in the aforesaid judgments, this court is inclined t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the share. The aforesaid decision in Stellar Investment Ltd. [1991] 192 ITR 287 (Delhi) was also affirmed by the hon'ble Supreme Court in the case of CIT v. Stellar Investment Ltd. [2001] 251 ITR 263. The Supreme Court observed that: "We have read the question which the High Court answered against the Revenue. We are in agreement with the High Court. Plainly, the Tribunal came to a conclusion on facts and no interference is called for. The appeal is dismissed. No order as to costs". In the case at hand, the learned Tribunal found on the facts that the identities of the creditors have been established and all essential particulars were furnished by the assessee. The assessee has discharged its burden to the satisfaction of the learned T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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