TMI Blog2008 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee. A. N. Mahajan for the Department. JUDGMENT The judgment of the court was delivered by DR. SATISH CHANDRA J.— This court vide order dated December 6, 1993 (under section 256(2) of the Income-tax Act) in I. T. A. No. 252 of 1993 has directed the Tribunal to draw up the statement of case and refer the following questions for the court's opinion for the assessment years 1983-84 and 1984-85 (R. A. No. 407(Alld.)/1992 and R. A. No.10 (Alld.) /1993). For the assessment year 1985-86, the Tribunal has referred the same questions under section 256(1) of the Income-tax Act for opinion of this court: "1. Is the Appellate Tribunal legally correct in holding that producing cold chilled air in the cold storage of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of section 32A. Other provisions of the Act, such as, section 33(1)(b)(B) and section 35E, show that mining of ore is treated as 'production'." 5. He further submitted that the word "production" has a wider connotation than the word "manufacture". While every manufacture can be characterised as production, every production need not amount to manufacture. The word "production" or "produce" when used in juxtaposition with the word "manufacture" takes in bringing into existence new goods by a process which may or may not amount to manufacture. It also takes in all the by-products, intermediate products and residual products which emerge in the course of manufacture of goods. 6. He further relied upon the ratio laid down by the Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its meaning with reference to the law lexicons, and attach to it a meaning which it was never intended to bear." 8. He continues to cite the ratio laid down in the case of General Contracts Co. v. CIT [2006] 287 ITR 416 (Guj), where the investment allowance was allowed on new machine or plant, if it is used in any other industrial undertaking for the purpose of business of construction, manufacture or production of any article or thing. 9. Lastly, he relied upon the ratio in the case of CIT v. Upasana Finance Ltd. [2006] 286 ITR 179, 181 (Mad), where depreciation was allowed on the printing cylinders, sintex shipper ice box, MS Bins etc., as each asset is a plant. 10. With the above mentioned case law, the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under sections 80J and 80HH. 12. To counter it, Sri Ravi Kant, learned counsel for the assessee, relied upon the ratio laid down in the case of CIT v. Tiecicon P. Ltd. [1987] 168 ITR 744/746 (SC), where the air-conditioning apparatus was considered as industrial company. 13. We have heard learned counsel for the parties and have gone through the arguments advanced and also perused the case law cited by them. 14. It maybe mentioned that the assessee is running a cold storage and had claimed that it was an industrial undertaking. By producing chilled air, the assessee claims investment allowance under section 32A of the Act. In the similar case, the claim of the assessee was denied in the case of CIT v. Kothiwala Cold Stor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article or thing specified in the Eleventh Schedule. An assessee should, therefore, establish that it was an industrial undertaking and was engaged in the business of manufacture or production of any article or thing." 15. Needless to mention that the air-conditioning plants are different from the cold storage. Hence, the ratio laid down in the case of CIT v. Tiecicon P. Ltd. [1987] 168 ITR 744/746 (SC) is not applicable, as in that case the claim was allowed only on air-conditioning apparatus. 16. In the instant case, the assessee is not selling chilled air. In fact, the chilled air is required to maintain the temperature for healthy preservation of the items stored in the cold storage. 17. The hon'ble Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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