HIGH COURT OF KERALA 

P. K. R. Menon, for the Applicant : C. N. Ramachandran Nair, for the Respondent 

JUDGMENT 

ARIJIT PASAYAT, C.J. : 

At the instance of the Revenue, following question has been referred by the Tribunal, Cochin Bench for opinion in terms of section 256 (1) of the IT Act, 1961 (in short the Act).

(in short th "Whether, on the facts and in the circumstances of the case, the assessee is entitled to investment allowance on computers ?" 

2. The factual position as set out in the statement of case is as follows. Assessee is a public limited company mainly engaged in the business of growing tea, rubber, cardamom, etc. and also executing engineering contract works. If claimed investment allowance on computers installed in the estate offices. 

The AO disallowed the claim for investment allowance on the ground that those machines are office equipments. On appeal, the CIT(A) allowed the claim by referring to a decision of the Bombay High Court in CIT vs. I.B.M. World Trade Corpn. (1981) 130 ITR 739 (Bom) : TC 28R.211. Revenue contested the correctness of such decision before the Tribunal. It was observed by the Tribunal that the assessee is entitled to get investment allowance on computers in the light of the decision of the Calcutta High Court in CIT vs. Shaw Wallace & Co. Ltd. (1993) 201 ITR 17 (Cal) : TC 28R.210. At the instance of the Revenue as stated above, the question has been referred to.

3. With reference to section 32A of the Act, learned counsel for the Revenue submitted that certain conditions have to be fulfilled before deduction can be granted, and the conditions were not fulfilled to be entitled to deduction. According to learned counsel for the assessee, the CIT(A) and the Tribunal found that the factual position clearly indicated about entitlement of assessee to get the benefit. 

4. Whether a particular machine is liable for deduction or not would depend upon the prescriptions in the relevant provision and the factual position of the case. Sec. 32A (2)(b)(iii) is relevant to the purpose of the case. Sec. 32A (1) and (2) reads as follows:

(in short th "32A (1) In respect of a ship or an aircraft or machinery or plant specified in sub-section (2) which is owned by the assessee and is wholly used for the purposes of the business carried on by him, there shall, in accordance with and subject to the provisions of this section, be allowed a deduction; in respect of the previous year in which the ship or aircraft was acquired or the machinery or plant was installed or if the ship, aircraft, machinery or plant is first put to use in the immediately succeeding previous year, then, in respect of that previous year, of a sum by way of investment allowance equal to twenty-five per cent of the actual cost of the ship, aircraft, machinery or plant to the assessee : 

Provided that in respect of a ship or an aircraft or machinery or plant specified in sub-section (8B), this sub-section shall have effect as if for the words "twenty-five per cent", the words "twenty per cent" had been substituted : 

Provided further that no deduction shall be allowed under this section in respect of - 

(a) any machinery or plant installed in any office premises or any residential accommodation, including any accommodation in the nature of a guest house; 

(b) any office appliances or road transport vehicles;

(in short the (c) any ship, machinery or plant in respect of which the deduction by way of development rebate is allowable under section 33 and 

(in short th (d) any machinery or plant, the whole of the actual cost of which is allowed as a deduction (whether by way of depreciation or otherwise) in computing the income chargeable under the head "Profits and gains of business or profession" of any one previous year. 

(2) The ship or aircraft or machinery or plant referred to in sub-section (1) shall be the following, namely 

(a) a new ship or new aircraft acquired after the 31st March, 1976 by an assessee engaged in the business of operation of ships or aircraft;

(b) any new machinery or plant installed after the 31st March, 1976, - 

(i) for the purposes of business of generation or distribution of electricity or any other form of power; or 

(ii) in a small-scale industrial undertaking for the purposes of business of manufacture or production of any article or thing; or 

(iii) in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing not being an article or thing, specified in the list in the Eleventh Schedule : 

Provided that nothing contained in cls. (a) and (b) shall apply in relation to, - 

(i) a new ship or new aircraft acquired, or 

(ii) any new machinery or plant installed, after the 31st March, 1987 but before the 1st day of April, 1988 unless such ships or aircraft is acquired or such machinery or plant in installed in the circumstances specified in cl. (a) of sub-section (8B) and the assessee furnishes evidence to the satisfaction of the AO an specified in that clause. 

(c) any new machinery or plant installed after the 31st March, 1983 but before the 1st day of April, 1987 for the purposes of business of repairs to ocean-going vessels or other powered craft if the business is carried on by an Indian company and the business so carried on is for the time being approved for the purposes of this clause by the Central Government." 

Undisputedly, in order to be eligible the stipulations as laid in the provisions have to be satisfied. The assessee has to prove that the conditions were fulfilled with reference to the factual background. On a reading of the orders passed by the CIT(A) and the Tribunal, we do not find any discussion with regard to the factual aspect and only with reference to the decisions rendered by the High Courts, the matter was disposed of. Whether the decisions were applicable to the facts of the case has not been analysed. In the circumstances, we remit the matter back to the Tribunal for examining the factual aspect and record its conclusion about the entitlement or otherwise of the assessee. 

The IT reference is disposed of as above.

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