- (1.) We have heard Shri A.N. Mahajan, learned counsel for the department. Shri Ashish Bansal appears for the assessee. In both the income tax appeal Nos. 81 and 82 of 2002 the department has raised following substantial questions of law to be considered by the Court:- 1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was correct in law in holding that the assessee was an Industrial Undertaking for the purpose of business of manufacture or production of any article or thing and consequently entitled to investment allowance under section 32A (1) of the Income Tax Act, 1961? 2. Whether on the facts and in the circumstances of the case, the order of the Commissioner of Income Tax (Appeals) is liable to be set aside when in fact machinery installed in Hotel is not entitled to Investment Allowance? 3. Whether on the facts and in the circumstances of the case. the Income Tax Appellate Tribunal was correct in law in deleting interest under section 234B of the Income Tax Act, 1961 particularly when charging of interest under that section is mandatory for default in payment of advance tax?
(2.) So far as the first question is concerned, we find that the Tribunal has set aside the order of the CIT (A) and A.O. and has remanded the matter to be decided in accordance with law. The appeal against the remand order unless it decides any question or raise any substantial question of law is not ordinarily maintainable. The submission that the assessing authority is bound by the judgment in Anand Theater's case as there is a direction that the issue may be decided afresh in view of the decision of the Supreme Court in Anand Theater, does not appear to have any substance in as much as the Tribunal has clearly stated that the A.O. will decide the matter in view of the case of the Anand Theater, as per law. If there is any other view taken by the Supreme Court or any larger bench decision covers the issue, the A.O. should not ignore it.
(3.) Shri A.N. Mahajan submits that in Hotel and Allied Traders Pvt. Ltd. Vs. Commissioner of Income Tax, 2000 245 ITR 538 the Supreme Court has decided the question regarding investment allowance under Section 32A of the Income Tax Act. We are of the opinion that the A.O. is required to consider all the cases, which are cited before him.;