Shah, J. - (1.) The respondent - hereinafter called "the assessee" - carries on the business of manufacture and sale of cotton yarn. In the previous year relevant to the assessment year 1956-57, the assessee spent Rs. 93,215 for introduction of "Casablanca conversion system" in its spinning plant. Substantially this involved replacement of certain roller stands and fluted rollers fitted with rubber aprons to the spinning machinery, removal of ring-frames from certain existing parts, introduction, inter alia, of ball-bearing jockey-pulleys for converting the original band-drivers to tape-drivers and other additions and alterations in the drafting mechanism.
(2.) The Income-tax Officer disallowed the claim of the assessee for Rs. 93, 215 because it was not admissible as "development rebate" since the introduction of Casablanca conversion system did not involve installation of "new machinery". The Appellate Assistant Commissioner agreed with the Income-tax Officer. In appeal to the Appellate Tribunal besides submitting the claim that expenditure was allowable as development rebate, the assessee urged that the amount laid out for introducing the Casablanca conversion system was in any event expenditure allowable under Section 10 (2) (v) of the Indian Income-tax Act. The Tribunal inspected the spinning factory of the assessee and studied the working of the machinery with the Casablanca conversion system in the process of spinning yarn. They also considered the literature published by the manufacturers of Casablanca conversion system and the relevant notification issued by the Ministry of Commerce, Government of India, defining the import policy, and held that as a result of "the stress and strain of production over a long period there was need for change in the plant and that the assessee had replaced old parts by introducing the Casablanca conversion system. In the view of the Tribunal the expenditure incurred for introducing the Casablanca conversion system though not admissible as development rebate, was admissible as an allowance under Section 10 (2) (v) of the Indian Income-tax Act.
(3.) The Tribunal then referred the following two questions to the- High Court of Judicature at Madras: "(1) whether on the facts and in the circumstances of the case, the Tribunal had jurisdiction to decide whether the sum of Rs. 93,215 constituted an allowable item of expenditure under Section l0 (2) (v) of the Act (2) whether on the facts and in the circumstances of the case, the sum of Rupees 93, 215 or any portion thereof is allowable as an expenditure incurred for current repairs under Section l0 (2) (v) of the Act - The High Court accepted the finding recorded by the Tribunal that by the introduction of the Casablanca conversion system no new machinery or plant was installed, but the introduction of the system amounted "to fitting of improved versions of certain minor parts" and expenditure in that behalf was of revenue nature. The High Court also held that the Tribunal had jurisdiction to permit the assessee to raise a new contention which was not raised before the Departmental authorities. The Commissioner has appealed to this Court, with special leave. The Tribunal had evidence before it from which it could be concluded that by introducing the Casablanca conversion system the assessee made current repairs to the machinery and plant. The High Court observed that certain moving parts of the machinery had because of "wear and tear" to be periodically replaced and when it was found that the old type of replacement parts were not available in the market the assessee introduced the Casablanca conversion system, but thereby there was merely replacement of certain parts which were a modified version of the older parts. Counsel for the Commissioner has not challenged these findings and the answer to the second question recorded in the affirmative by the High Court must be accepted. ;