Shri T.A. Bukte, Judicial Member - (1.) THE applicant-assessee has made this miscellaneous application to rectify apparent mistake on the face of the consolidated order of the Tribunal in I. T. A. Nos. 1336 PN/1990 and 64/PN/1992 for the assessment years 1989-90 and 1990-91.
(2.) We have heard the learned representative for the assessee Shri G. N. Gadgil and the learned departmental representative Shri A. K. Khaladkar. Their arguments are taken into consideration. We have once again gone through the paper book filed by the assessee at the time of hearing of the appeals as on 3-12-1992. Shri Gadgil has pointed out that two decisions of the Bombay Tribunal in the case of Marshall Poultry Farm [IT Appeal Nos. 5004 to 5007 (Bom.) of 1982] for the assessment years 1976-77 to 1979-80 and in I. T. A. Nos. 7076/Bom/1984 for the assessment year 1980-81 have been considered by the Tribunal in its appellate order. However, the Tribunal has not considered another order of the Bombay Bench of the Tribunal in the case of Deccan Poultry Industries [IT Appeal No. 4046 (Bom.) of 1982] for the assessment year 1977-78. According to him the Tribunal has also not considered some other decisions. It is true that the decision of the Bombay Bench of the Tribunal in the case of Deccan Poultry Industries (supra) has not been considered though that decision is also on the identical issue as involved in the case of Marshall Poultry Farm (supra) and other assessees. The Bombay Bench has held in all those decisions that the sheds in which the poultry farm is being run and eggs are hatched are to be treated as plants.
(3.) SHRI Gadgil contended that not considering the decision of the Bombay Bench of the Tribunal in the case of Deccan Poultry Industries (supra) is a mistake apparent on the face of the order of the Tribunal. According to him, the second mistake is in arriving to a conclusion on the basis of the facts narrated by the Tribunal itself. He has pointed the facts narrated by the Tribunal in para 8 of its order dated 27-1-1993. The said facts are reproduced herein for the sake of correct conclusion. "The assessee has explained the design of the poultry shed and its working on page 1 of the paper book. The structures have been specifically designed to enable the assessee to carry on its business. It is specifically designed to scientifically engage in the business of hatching chicks and the structure has certain special features which are not common in a building or a mere structure and therefore, it is submitted to treat the hatcheries as 'plant'. There is a washing room, cold room for keeping of eggs, environmentally controlled building free from bacterias, hatchers and setters (incubators), temperature is controlled in the hatcheries. Thus whole hatchery is specifically designed, scientifically designed to production of one day old chicks without which it is highly impossible for production. Sheds are scientifically and specially designed to as to have feeders, waterers, to control effect of radiation cages are installed, sheds are hygienically erected and temperature controlled ones, broodes to protect them from whether, wild animals and cats, Special lights, wastage dropping and scientific collections are main features of these buildings conducive for production of large number of eggs and chicks on a scientific basis in modern hatcheries. It is impossible for the various equipments such as brooders, cold room, hatchers and setters etc. to function without specially designed structure. It was argued that the poultry sheds and scientific apparatus are used for carrying on business and these are not stock in trade. They were not mere setting or more structure or mere premises in which chicks were hatched.";