TMI Blog2000 (4) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee was entitled to investment allowance on the machinery acquired for manufacture of ice-cream by taking a view that ice-cream was not a confectionery and did not fall within items of Schedule 11 to the Income-tax Act, 1961, as a result of which the appellate order of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) that in the earlier assessment year, i.e., 1984-85, the claim of the assessee was allowed. Considering that fact, the Commissioner of Income-tax (Appeals) has cancelled the order of the Assessing Officer under section 147(b) of the Act. The Revenue carried the matter before the Tribunal. The Tribunal has followed its earlier order in the assessment year 1984-85 and upheld the order of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Eleventh Schedule to the Income-tax Act has been considered in respect of ice-cream, i.e., whether ice-cream is a milk product or a confectionery product, that question has been considered in sales tax matters. In Milco Ice-cream Co. v. CST [1982] 49 STC 294, the Allahabad High Court has taken the view that ice-cream commodity can be said to be a milk product if it is produced from it. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. milk fat and 8.5 percent. milk solid and buffalos' milk shall contain a minimum of 6 per cent. milk fat and 9 per cent. milk solid. Section 6 of the Act exempts the articles mentioned in the Second Schedule to the Act which includes fresh milk, whole or separated and milk products. The Delhi High Court has also considered the decision of the apex court in Ramavatar Budhaiprasad [1961] 12 STC 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be said that ice-cream is understood in common parlance as milk product our answer is in the affirmative and that too this court has already answered the similar question in the case of this very assessee in the assessment year 1984-85 in favour of the assessee. In the result, we answer the question in the affirmative, i.e., in favour of the assessee and against the Revenue. The reference a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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