D.K.Seth, J. - (1.) In this reference the following question has been referred to this court: "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in law in directing the Assessing Officer to grant investment allowance under Section 32A and additional depreciation under Section 32(1)(iia) of the Income-tax Act, 1961?"
(2.) Mr. Mallick, learned senior counsel for the appellant, submits that the Assessing Officer (the ITO) had properly dealt with the question referred to in this reference. The appellate authority and the learned Tribunal have wrongly appreciated the proposition having regard to the provisions contained in Sections 32(1)(iia) and 32A(1) of the Income-tax Act, 1961. According to him, in order to avail of the benefit of Sections 32(1)(iia) and 32A(1) of the 1961 Act, additional depreciation and investment allowance can be availed of only in respect of the plant, other than those excepted by Clause (b) of the respective proviso, owned by the assessee and used for the purpose of manufacturing being installed in the factory. In this case on the railway siding and the locomotive, the provisions of Sections 32A(1) and 32(1)(iia) of the Act cannot be applied. He also contends that in order to attract the said provisions it has to be installed. Neither the railway siding nor the locomotive is connected with the manufacturing purpose. That apart, the railway siding being situated outside the factory premises, the said two sections cannot be attracted.
(3.) In order to elaborate his submission he submits that the exception is road transport vehicle as is apparent from the respective Clause (b) of the proviso to Sections 32(1) and 32A(1). Road transport vehicle is defined under the Road Transport Corporations Act which includes all kinds of transport whether rail or road. The definition is not exhaustive. It is inclusive. It includes tram car. Therefore, it will include rail. He pointed out that Sections 32 and 32A speak of aircraft, ships but do not speak anything about rail or road. Whereas road transport vehicles is excepted. Therefore, according to him, the Legislature has intended only to include three modes of transport, namely, air transport, water transport and surface transport. It has not made any sub-division in any of the three modes. The exception road transport vehicle means transport vehicle used on surface. Therefore, this exception covers rail transport as well. He further contended that the railway siding or the locomotive does not fall within the description of plant. Hence, these provisions cannot be attracted. Therefore, he prays that the question should be answered in the negative, against the assessee.;