TMI Blog2001 (2) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the circumstances of the case, the Income tax Appellate Tribunal was justified in dismissing the appeals for the assessment year 1982-83/1983-84 as infructuous in view of their finding that the revision order under section 263 of the Commissioner of Income-tax was bad in law?" We make it clear that questions Nos. 2 and 3 arise because of the peculiar course that the assessment took in regard to the assessment year in question. At first, from the Income-tax Officer's assessment, the Revenue made an application for revision and from the order passed on revision, the Tribunal was approached. However, before that matter could be settled, pursuant to the revising order a fresh assessment was made which again reached the Tribunal. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny article or thing..." Such article or thing cannot be in the Eleventh Schedule but it is nobody's case that coal is in the Eleventh Schedule. Mr. Agarwalla gave us several cases. Amongst those the case of CIT v. Venkateswara Hatcheries (P.) Ltd. [1999] 237 ITR 174 (SC), contains dicta to the effect that production of chicks through the assessee's specialised machinery, which aids such formation is not, within the meaning of the Income-tax Act, production of an article or thing. The Supreme Court laid emphasis on its view that chicks were not articles or things. Also, it said that the assessee does not cause the formation of chicks, which are formed by natural biological processes. The assessee's work is merely aiding such formation. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at was not there comes up, and it is, therefore, a production of coal. The Division Bench followed its own decision in the later case of Khalsa Brothers v. CIT [1996] 217 ITR 185. Mr. Bajoria also relied on the interesting case of CIT v. Shaan Finance (P.) Ltd. [1998] 231 ITR 308, where the Supreme Court opined that a financier owning machinery might still be entitled to investment allowance even if the machinery is actually used by its lessee for the purpose of production. Going on the language of sub-sections (1) and (2) of the said section, the Supreme Court found, on an accurate assessment of the language (we say this with the greatest respect), that the language does not disentitle the financier from investment allowance in the above c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles, but is still not to be classed as an industrial one for this, dear indications have to be given as to why this difference should be made in the case of the undertaking in question, so that it stands out from the general category. We were not shown any such particular difference excepting that the assessee was also said to carry on transport business. It suffices in this regard to mention that on the principle of Shaan Finance's case [1998] 231 ITR 308 (SC), if the assessee owns the machinery for which investment allowance is claimed, and such machinery is used for production then the section applies; it does not matter if the use for production is made by the lessee or only in one industrial part of the assessee's business under ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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