Cit vs Sir Shadilal Enterprises Ltd.

ORDER

1. The present Income Tax Appeal has been filed by the Commissioner of Income Tax, Meerut, under section 260A of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') on the ground that it raises the following substantial question of law:

"Whether, on the facts and in the circumstances of the case, learned I.T.A.T. was legally correct in confirming the CIT(A)'s decision in holding that mere passing a journal entry mentioning utilization of investment allowance reserve fulfils the requirement of provisions of section 32A(5) of the Income Tax Act, 1961.

2. We have heard Sri A.N. Mahajan, learned counsel for the revenue and Sri S.P. Gupta, learned senior counsel assisted by Sri S.D. Singh on behalf of the respondent-assessee.

3. This appeal and other connected appeals relate to the assessment Years 1978-79 to 1986-87. During these assessment years the respondent -assessee claimed and was granted the following amount towards investment allowance:

Accounting Year Accounting Year Asstt. Year Asstt. Year Deduction U/s 32A claimed Deduction U/s 32A claimed Amt. Credited to investment allowance reserve a/c.

Amt. Credited to investment allowance reserve a/c.

Credit balance as at the close of year Credit balance as at the close of year 1976-77 1978-79 33,488 25,116 25,116 1977-78 1979-80 1,56,881 1,17,660 1,42,776 1978-79 1980-81 2,09,105 1,56,829 2,99,605 1979-80 1981-82 25,486 25,486 3,25,091 1980-81 1982-83 3,10,448 3,10,448 6,35,539 1981-82 1983-84 3,57,874 3,57,874 9,93,413 1982-83 1984-85 9,351 9,351 10,02,764 1983-84 1985-86 46,761 46,761 10,49,525 1984-85 1986-87 18,54,002 18,54,002 29,03,527

4. While passing assessment order for the assessment year 1988-89 the assessing officer found that the reserve so credited in the earlier assessment years had continued to remain in the books of account unutilized and the same was written back and therefore, he was of the view that the provisions of section 32A(5) of the Act had been violated and action under section 155(4-A) of the Act was required. He accordingly withdrew the investment allowance granted earlier in respect of each of the assessment years in question.

5. Feeling aggrieved the respondent-assessee preferred separate appeals before the CIT(A). The CIT (A) found that during the assessment year 1988-89 the respondent-assessee had purchased plant and machinery, which was much more in value than the amount standing in the investment allowance reserve, i.e., the machinery, was purchased for Rs. 57,93122 whereas the amount standing in the investment allowance reserve was only Rs. 29,03,527. He accordingly allowed the appeal and deleted the withdrawal of the investment allowance. The revenue's appeals before the Tribunal have failed.

6. From the perusal of the order of the Tribunal we find that the Tribunal has recorded a categorical finding that there has been addition to the extent of Rs. 57,93,122 in the fixed assets under the head 'Plant and Machinery' during the assessment year 1988-89, which exceeded the amount standing in the investment allowance reserve. Thus the amount in the investment allowance reserve has been used for purchase of plant and machinery and the provisions of section 32A(5) of the Act is not at all attracted. The aforesaid finding has been arrived at after appreciation of evidence and materials on the record. The finding being pure finding of fact cannot be interfered under section 260A of the Act, which lies only on substantial questions of law and not even on questions of law. In this view of the matter the present appeal does not give rise to any substantial question of law. In any event the provisions of section 32A(5) of the Act has not been contravened.

7. Moreover, the revenue has not disputed that the respondent-assessee had made addition to plant and machinery to the extent of Rs. 57,93,122 during the assessment year 1988-89

8. In view of the foregoing discussions we do not find any merit in appeal. The appeal is dismissed.