DEO NARAYAN THANVI, J. - (1.) AS common questions of law with regard to the entitlement of investment allowance under Section 32A of the IT Act, 1961 (hereinafter referred to as 'the Act') are involved in these three appeals, therefore, they are being disposed of by this common judgment. Though the facts in three appeals are little bit different as referred hereunder: (i) D.B. IT Appeal No. 41 of 2002:
(2.) IN this appeal, the assessee was carrying on business of excavation of limestone and sale thereof. The AO allowed investment allowance of Rs. 3,30,292 while making assessment under Section 143(3) of the Act for the asst. yr. 1990 -91 on the cost of loaders and dumpers vide Annex. 1 but the CIT passed the order under Section 263 of the Act and held that the assessee is not entitled to investment allowance under Section 32A of the Act by holding that the dumper/loader is a motor vehicle vide Annex. 2. In appeal, the Tribunal, Jodhpur set aside the order of the CIT and restored the order of AO granting investment allowance on dumpers and loaders as not being road transport vehicles vide Annex. 3. (ii) D.B. IT Appeal No. 42 of 2002: In this appeal also, the assessee was carrying on business of excavation of limestone and sale thereof and was granted investment allowance on dumpers for a sum of Rs. 2,70,747 while making assessment under Section 143(3) of the Act for the asst. yr. 1989 -90 vide Annex. 1, but in appeal (sic), the CIT, Jodhpur passed the order under Section 263 of the Act that dumper is a road transport vehicle and the assessee is not entitled to investment allowance on dumpers vide Annex. 2. In appeal before the Tribunal, Jodhpur, the order of the CIT was set aside and that of the AO was restored by holding that assessee is entitled to investment allowance under Section 32A of the Act on the cost of purchase of new dumpers vide Annex. 3. (iii) D.B. IT Appeal No. 77 of 2002:
(3.) IN this appeal, the assessee was engaged in the business of running hydraulic excavators and tippers for cement companies on hire basis by realizing rent for operation of hydraulic excavators and tippers. The assessee claimed investment allowance on the hydraulic excavators and tippers under Section 32A of the Act for the asst. yr. 1992 -93 for a sum of Rs. 16,69,796 but the AO declined to allow the investment allowance on the ground that plant and machinery are road transport vehicles and are not used by the assessee for his own business for the purpose of either construction, manufacturing or production of an Article or thing required to be carried on by him vide Annex. 3. Aggrieved by the order of the AO, the assessee preferred an appeal before the CIT(A), Udaipur, who allowed the appeal and set aside the order of the AO by holding that the machines used by the assessee are rock brokers into small pieces and not road transport vehicles and he was allowed investment allowance vide Annex. 2. The Revenue went in appeal before the Tribunal, Jodhpur, which dismissed the appeal of the Revenue vide Annex. 1.;