- (1.) BY this application under S. 256(2) of the IT Act, 1961, it is prayed that it may be directed to refer the following question of law alongwith the statement of the case for the opinion of this Court : "Whether, on the facts and in the circumstances of the case, and in law the Tribunal was justified in directing the Assessing Officer to find out whether during the year under consideration, the dumpers were used by the assessee as road transport vehicle or whether they were used purely as mining machinery for allowing investment allowance and depreciation as per the provisions despite the fact that the Tribunal in asst. year 1981 -82 vide order in ITA No. 561/Jp/1988 dt. 11th Sept., 1991 in this very case has held that the dumpers are road vehicles and are not entitled to investment allowance and higher depreciation -
(2.) THE assessee is engaged in business of exploitation of mine, extraction of stones and sale thereof. Inter alia the assessee claimed higher depreciation and investment allowance on the cost of dumpers, which was disallowed by the Assessing Officer and even in appeal. In second appeal before the Tribunal, the Tribunal has referred its order in the case of Nav Bharat Construction Co., wherein it was observed that investment allowance and additional depreciation on dumpers cannot be either allowed or rejected automatically merely because they are called dumpers. The dumpers are capable of being used both as mining machinery and machinery as road transport vehicles, but it was for the assessee to establish that they were used exclusively as mining machinery and not as road transport vehicles. The assessee will be entitled for investment allowance or additional depreciation on dumpers only if the dumpers are used as mining machinery. The Tribunal has referred the decision of this Court in the case of Kumar Transport Pvt. Ltd. It is further observed by the Tribunal in the year under consideration that no specific material has been brought on record. Therefore, the matter was restored to the file of the Assessing Officer to make necessary enquiry to find out whether in the year under consideration the dumpers were used by the assessee as road transport vehicle or whether they were used purely as mining machinery.
(3.) WHEN necessary facts relevant to the issue whether the dumpers are road transport vehicles or form part of the machinery are not brought on record. No enquiry has been made by the assessee itself. In such circumstances the Tribunal was fully justified in remitting the matter back to the Assessing Officer to make necessary enquiries to ascertain whether the assessee is entitled for investment allowance or additional depreciation. No purpose will be served in calling the question for our opinion as we agree with the view taken by the Tribunal on the question proposed. In the result, the reference application under S. 256(2) is dismissed.;