TMI Blog1992 (12) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... s cannot be said to be major items of specialised equipment used in 'mining machinery' ?" The assessee is a public limited company and its business is to manufacture automobile ancillaries, equipment for generation of electricity, etc. The assessment year involved in this reference is 1971-72, the relevant accounting year being the year ended on June 30, 1970. The dispute in this case relates to disallowance of the claim for development rebate at a higher rate in respect of machinery used in manufacture of miners' safety cap lamps, mining batteries and components. The assessee's case is that these items are covered by item No. (4) of the Fifth Schedule to the Income-tax Act, 1961 ("the Act"), and as such, under section 33 of the Act, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (B) in the case of machinery or plant- (i) where the machinery or plant is installed for the purposes of business of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule, (a) thirty-five per cent. of the actual cost of the machinery or plant to the assessee, where it is installed before the 1st day of April, 1970. and (b) twenty-five per cent. of such cost where it is installed after the 31st day of March, 1970 ;" (emphasis supplied). Item No. (4) of the Fifth Schedule reads as follows: "Industrial machinery specified under the heading '8. Industrial machinery', sub-heading 'A. Major items of specialised equipment used in specific industries', of the Fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us in Income-tax Reference No. 50 of 1978 (CIT v. Standard Batteries Ltd. [1993] 201 ITR 977 (Bom)), and as such this case was heard by us along with the said reference. In that case, following the decision of the Supreme Court in CIT v. Mir Mohammad Ali [1964] 53 ITR 165 and the decision of the Privy Council in Corporation of Calcutta v. Chairman,. Cossipore and Chitpore Municipality [1922] ILR 49 Cal 190 (PC), it was held that the words "mining machinery" mean something more than a collection of ordinary tools and that it should mean some mechanical contrivances which, by themselves or in combination with one or more other mechanical contrivances, by the combined movement and inter-dependent operation of their respective parts genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Act ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal ought to have held that plant and machinery of Oldham Division of the assessee was installed for the purpose of business of manufacture or production of articles mentioned in the Fifth Schedule of the Income-tax Act, 1961 ? 3. Whether the Tribunal ought to have held that as the assessee's Oldham Division was also manufacturing automobile storage batteries which admittedly fall in the Fifth Schedule and the assessee would be entitled to development rebate at the enhanced rate in respect of the new plant and machinery installed by the Oldham Division under section 33(1)(b)(B) of the Income-tax Act, 1961 ? 4. Whether the Tribunal ought to have he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disallowance of a sum of Rs. 43,879 which was claimed by the assessee as a deduction by way of entertainment expenses. The Tribunal was of the opinion that it was essentially a question of fact and, as such, did not refer the same. On a careful consideration of the order of the Tribunal we find ourselves in agreement with the conclusion of the Tribunal that the said question is essentially a question of fact and the finding of the Tribunal is based on appreciation of evidence on record. As such, in our opinion, the Tribunal was justified in not referring the same. So far as other four questions are concerned, the Tribunal itself had clearly held that all these questions are questions of law which do arise out of the order of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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