K. Ramaswamy, J. - (1.) This appeal by the assessee is directed against the judgment of the Division Bench, Patna High Court made in Tax Case No. 30 of 1972 dated September 11, 1974 answering in favour of the Revenue and against the assessee the question reframed thus:"Whether on the facts and in the circumstances of thiscase the order of the Tribunal allowing the unabsorbed development rebate in respect of the plant and machinery not installed by the assessee, under Section 33(1) of the Income-tax Act was legal and proper."
(2.) The Tribunal referred the question, at the instance of the Revenue, to the High Court under S. 256(1) of the Income-tax Act, 1961 (for short'the Act) which reads thus:- "Whether in the facts and circumstances of the case, the order of the Tribunal holding that the conditions under Section 33(1) of the Income-tax Act are satisfied is legal and proper."
(3.) The appellant-assessee is a registered' partnership firm under a deed executed and registered on November 10, 1958 between Prayagchand Periwal and Hanumanmal Periwal and M/ s. Periwal and Co. Pvt. Ltd. having its business at Purnea in Bihar State. It derives income from the business of cold storage. M/s. Prayagchand Hanumanmal, partnership firm consists of Prayagchand and Hanumanmal Periwal with 50 per cent share each and started its business with its Head Office at Calcutta and a Branch Office at Purnea. It started functioning w.e.f. May 3, 1956. The Branch Office at Purnea carried on the business in the name and style of Shri Mahabir Cold Storage. The partners had taken loan from Periwal and Co. Pvt. Ltd. for erection of Cold Storage and for its running capital. Later the Company was taken as a partner for better management and financial assistance. Prayagchand and Hanumanmal each has 25 per cent and Periwal and Co. (P.) Ltd. has the remaining 50 per cent shares in the profits of the newly constituted partnership M/ s. Mahabir Cold Storage at Purnea. The new partnership also obtained registration under the Indian Income-tax Act, 1922 (for short 'the repealed Act) and later under the Act. It filed voluntary returns and it was separately assessed from the assessment year 1960-61 and thereafter.;