Commissioner of Income Tax vs GEORGE MAIJO (CUD)

K. Raviraja Pandian, J.

The question referred to us, at the instance of the revenue, for our consideration is,

"Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in holding that the assessee engaged in processing and export of prawns and allied products is entitled to investment allowance u/s 32A in respect of the building used by the assessee in its business treating it as plant and machinery?"

The assessment year is 1983-84.

The assessee is engaged in processing and export of prawn and allied products. For the assessment year 1983-84, the assessee had claimed investment allowance of Rs. 2,12,852. That claim was rejected by the assessing officer on the ground that the machinery was not used for manufacture or production of any articles or things. On appeal by the assessee, the Appellate Commissioner held that the process of preparing prawns for export involved production or manufacture and therefore the assessee was entitled to investment allowance. However, the assessing officer, while giving effect to that order of the Appellate Commissioner allowed investment allowance only in respect of the plant and machinery and rejected the claim in respect of the buildings. On further appeal by the assessee the Commissioner (Appeals) held that the building which is used by the assessee as cold storage is specifically constructed to suit the requirements of the business of the assessee and, therefore, is eligible for investment allowance. Hence the present reference at the instance of the revenue.

Question similar to the one referred to in this case has already been considered by this court in the assessees own case in Commissioner of Income Tax Vs. George Maijo, , wherein the court observed that for the purpose of deduction u/s 80HH of the Income Tax Act, 1961, the test which has to be applied for the purpose of determining whether a commodity subjected to processing retains its original character and identity even after processing is as to whether the processed commodity is regarded in the trade by those who deal in it as distinct in identity from the original commodity or it is regarded commercially and in the trade as the original commodity. The court, so observing, held that the assessee was not eligible for deduction u/s 80HH of the Income Tax Act, 1961.

That decision squarely applies to this assessment year as well. The question is, therefore, answered in favour of the revenue and against the assessee.