R.K.Agrawal, J. - (1.) The Income Tax Appellate Tribunal, Allahabad has referred the following questions of law under Section 256(2) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") for opinion to this 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 allowability of investment allowance to Cold Storage is a disputable issue when the issue stands already settled following decisions of Hon'ble Supreme Court in case of Chowgule & Co. (P) Ltd. (1981) 47 STC 124 which was followed by Hon'ble High Courts in cases of C.I.T. the Revenue Delhi Cold Storage (P) Ltd., 156 ITR 97 and C.I.T. v. Mittal Ice & Cold Storage (159 ITR 46)? 2. Decision of the Hon'ble Supreme Court in case of Chowgule & Co. (P) Ltd. (1981) 47 STC 124 on interpretation of definition of 'manufacturing processing' amount to a declaration of law as contemplated by Article 141 of the Constitution of India, whether on these facts, ITAT was correct in law in holding that provisions of Section 154 did not apply because allowability of investment allowance to a cold storage plant was disputable law point?"
(2.) The reference relates to the Assessment Year 1979-80. Briefly stated, the facts giving rise to the present reference are as follows:The respondent assessee is running a cold storage. It claimed investment allowance with regard to the cold storage which was accepted by the Assessing Officer while framing the regular assessment. Later on, the Assessing Officer felt that granting of investment allowance to a cold storage was a mistake. He accordingly issued notice under Section 154 of the Act and withdrew the investment allowance earlier granted. Feeling aggrieved, the respondent assessee preferred an appeal. The Appellate Assistant Commissioner rejected the appeal. Still feeling aggrieved, the respondent assessee preterred a second appeal before the Tribunal. The Tribunal after hearing the learned counsel for the parties held that the question as to whether investment allowance is admissible on plant and machinery installed in a cold storage is a debatable issue inasmuch as various High Courts had taken different views at that point of time. It has found that the Punjab and Haryana High Court, reported in 178 ITR 585, had held that the investment allowance was allowable with regard to a cold storage plant. However, the other High Courts, namely, the Delhi High Court in the case of Commissioner of Income Tax v. Delhi Cold Storage Pvt. Ltd., 156 ITR 97 and Commissioner of Income Tax v. Mittal Ice & Cold Storage, 159 ITR 46, had taken a contrary view. It may be mentioned here that this Court in the case of Addl. Commissioner of Income Tax v. Farrukhabad Cold Storage P. Ltd., (1977) 107 ITR 816, had held that in a cold storage processing is involved and, therefore, it is an industrial undertaking within the meaning of Section 2(7)(d) of the Finance Act, 1966 and 1967 which provisions are similar to the provisions of Section 32A of the Act. In view of the conflicting opinion by various High Courts, the Tribunal had held that as he issue was debatable, the order under Section 154 of the Act could lot have been passed as there was no mistake apparent on record.
(3.) We have heard Sri A.N. Mahajan, learned Standing Counsel for the Revenue. No body has appeared on behalf of the respondent assessee.;