COMMISSIONER OF Income Tax vs RUNGTA MINES PVT. LTD.

SUHAS CHANDRA SEN J. - The following question of law has been referred by the Tribunal to this court u/s 256(1) of the Income Tax Act, 1961 :

"Whether, on the facts and in the circumstances of the case, the incomplete railway siding under construction could be termed as plant within the meaning of section 43(3) of the Income Tax Act, consequent upon which the assessee was eligible for deduction ?"

The assessment year involved is 1979-80 for which the relevant year of account is the year ending on October 13, 1978.

The assessee had, in fact, raised as many as three questions. In the first question, the assessee challenged the finding of the Tribunal that the railway siding (under construction) which was later on abandoned was a plant within the meaning of section 43 (3) of the Income Tax Act. That question has been referred to this court in a modified form. The second question challenged the alternative finding of the Tribunal that the railway siding might be taken as building. The third question was a general question about the eligibility of the assessee to get relief u/s 32(1)(iii) of the Income Tax Act. But only one question, as has been stated before, has been referred to this court.

The Tribunal in its decision considered whether the siding construction by the assessee was to be taken to be plant which was eligible for relief u/s 32 (1) (iii) and decided that it was so eligible. Alternatively, the Tribunal considered whether the incomplete railway siding could be treated as building even if it could not be treated as plant. The Tribunal held that the alternative argument had also great force and the siding could be treated as a building.

Therefore, even if the Department succeeds in this reference and the question is answered by saying that the Tribunal was wrong in treating the railway siding as a plant, the decision of the Tribunal that it was a building within the meaning of section 32 (1)(iii) will remain. It has not been explained by the Revenue why any question has not been raised as to the correctness of the alternative finding of the Tribunal.

In that view of the matter, answering the only question raised will be academic. We decline to answer the question.

There will be no order as to costs.

BHAGABATI PRASAD BANERJEE J. - I agree.