- (1.) At the instance of the Commissioner of Income-tax, the Income-tax Tribunal has referred the following question of law for answer to this court under Section 256(1) of the Income-tax Act, 1961. " Whether, on the facts and circumstances of the case, the Tribunal was justified in law in allowing the assessee's appeal against the order of the Commissioner of Income-tax, West Bengal VIII, Calcutta, passed under Section 263, upholding the order of the Commissioner of Income-tax (Appeals) who held that the cold storage of the assessee falls within the category of 'renewable energy devices' being solar energy operated cold storage within the meaning of Appendix I, item No. III-D--Machinery and plant, No. (10A)(vii) of Part I of the Income-tax Rules, 1962 ?"
(2.) The facts which give rise to the aforesaid question of law are that the assessee is a firm which runs a cold storage. The relevant assessment years involved are 1985-86 and 1986-87. For these two assessment years, the Assessing Officer allowed depreciation on the cold storage plant at the rate of 30 per cent. which was applicable to the plant and machinery or renewable energy device being solar refrigeration cold storage air-conditioning system.
(3.) However, the Commissioner of Income-tax set aside the aforesaid assessment orders under Section 263 of the Income-tax Act, and directed the Assessing Officer to make a fresh order of assessment for the relevant assessment years. The Commissioner of Income-tax was of the view that the depreciation allowable to the assessee was at the rate of 15 per cent. and not at the rate of 30 per cent.;