Commissioner of Income Tax vs M.D. Pendse

B.P. Saraf, J.—By a reference u/s 256(1) of the Income Tax Act, 1961 ("the Act"), the Income Tax Appellate Tribunal has referred the following questions of law to this court for opinion, out of which question No. (i) is at the instance of the Revenue and questions Nos. (ii) and (iii) are at the instance of the assessee.

"(i) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the business carried on by the assessee in ''poultry farming'' was an ''industrial undertaking'' engaged in manufacturing and production within the meaning of Section 32A of the Income Tax Act, 1961 ?

(ii) Whether the Tribunal was correct in holding that the assessee was not entitled to claim extra-shift allowance in respect of :

(i) Cages and equipment,

(ii) California type sheds ?

(iii) Whether the Tribunal was correct in holding that the assessee was not entitled to claim double shift allowance in respect of machinery ?"

Learned counsel for the parties have agreed that the controversy in this case now stands concluded in view of the decision in the case of the assessee itself in Commissioner of Income Tax Vs. M.D. Pendse, (infra)-income tax Reference No. 500 of 1995, wherein it has been held that the assessee is not entitled to investment allowance u/s 32A of the Act. In view of the above question No. (i) is answered in the negative, i.e, in favour of the Revenue and against the assessee.

So far as questions Nps. (ii) and (iii) are concerned, the controversy therein pertains to entitlement of the assessee to claim extra-shift allowance in respect of cages and equipment and California type sheds and double shift allowance in respect of machinery. Learned counsel for the assessee, Mr. A. P. Sathe, submits that the assessee is entitled to get extra-shift allowance in respect of the first two items and double shift allowance in respect of machinery. In support of this contention, he relied upon a decision of the Supreme Court in the case of M/s. South India Viscose Ltd. Vs. Commissioner of Inocme Tax, .

Mr. Shyam Diwan. learned counsel for the Revenue, on the other hand, submits that the Supreme Court decision relied upon by the assessee is not applicable in this case in view of the concurrent findings of the authorities below that the assessee failed to prove that the concern of the asses-see was working for more than one shift. He further drew our attention to the order of the Tribunal wherein it is stated that there was no extra shift working in the concern of the assessee. It is thus evident that the assessee is not entitled to extra shift allowance.

In view of the above we are of the opinion that the Tribunal was correct in holding that the assessee was not entitled to claim extra shift allowance in respect of cages and equipment and double shift allowance in respect of machinery. Wo therefore answer questions Nos. 2 and 3 in the affirmative, i.e. in favour of the Revenue and against the assessee.

This reference is accordingly disposed of with no orders as to costs.