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Judgment
Thanikkachalam, J.—In compliance with the direction of this Court, dt. 6th April, 1983, the Tribunal referred the following three questions
for the opinion of this Court under s. 256(2) of the IT Act, 1961 hereinafter referred to as the ''Act'', for the asst. yr. 1971-72 :
Whether, on the facts and in the circumstances of the case and having regard to the provisions of s. 80J(4) of the IT Act, 1961, the Tribunal
was right in holding that the assessee is entitled to relief under s. 80J in respect of its seed processing unit ?
Whether, on the facts and in the circumstances of the case and having regard to the provisions of s. 80J(4)(iii) of the IT Act, the Tribunal was
right in holding that the assessee is entitled to relief under s. 80J in respect of its cattle feed unit ?
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee is entitled to higher rate of
depreciation and development rebate in respect of items of plant and machinery, which came into contact with corrosive chemicals ?
Inso far as question No. 1 is concerned, it relates to relief under s. 80J in respect of the seed processing unit. A similar question came up for
consideration before this Court in the case of the same assessee in T. C. Nos. 742 of 1982 and 301 to 303 of 1983, wherein this Court, by
judgment dt. 29th March, 1995 [reported as CIT vs. E. I. D. Parry (India) Ltd., held that the seed processing unit is entitled to relief under s. 80J
of the Act. Accordingly, we held that there is no infirmity in the order passed by the Tribunal in the assessment year under consideration in granting
relief under s. 80J of the Act in respect of the seed processing unit. Accordingly we answer this question (question No. 1) referred to us in the
affirmative and against the Department.
Inso far as question No. 2 is concerned, it relates to relief under s. 80J in respect of the cattle feed unit. This issue also came up for
consideration before this Court in the case of the same assessee in the asst. yrs. 1972-73 to 1974-75 in T. C. Nos. 742 of 1982 and 301 to 303
of 1983, judgment dt. 29th March, 1995 wherein this Court held that inasmuch as no material was available on record to show in the matter of
what is the manufacturing activity or processing activity which the assessee is indulged in producing the cattle feed. In order to verify this aspect,
we directed the Tribunal in the earlier assessment year on the facts arising on this aspect and decide the issue accordingly. Since the same is arising
in the present assessment year under consideration and since the facts are not available on record to show as to what is the manufacturing activity
or processing activity which the assessee is doing in producing the cattle feed, we consider that in accordance with the order passed by this Court
in respect of the earlier years in the case of the same assessee, the proper course would be to remit back this issue also to the Tribunal for re-
consideration on merits. Accordingly we do so. Thus we are returning question No. 2 unanswered.
Inso far as question No. 3 is concerned, it relates to higher rate of depreciation and development rebate in respect of items of plant and
machinery which comes into contact with corrosive chemicals. The assessee is also manufacturing sugar. The assessee claimed that the machinery
involved for that purpose came into contact with corrosive chemicals and, therefore, higher rate of depreciation and development rebate were
admissible under Entry B(7) in Item (ii), Special Rules under the Head III Machinery and Plant in Appendix I, Part I of the IT Rules, 1962, which
read ""machinery and plant coming into contact with corrosive chemicals"". The assessee had filed before the AAC a statement giving the names of
corrosive substances and the equipments of the assessee in the sugar mill, which were subject to corrosive action. The AAC accepted the claim of
the assessee that the said substances were chemicals, which corrode the machinery and hence allowed depreciation and development rebate at
higher rate. Aggrieved, the Revenue preferred an appeal before the Tribunal, but did not dispute the finding of fact given by the AAC that there
were several chemical substances used in the manufacture of sugar, which itself is chemical and that such substances did, in fact, corrode the
machinery. The Revenue pleaded that the depreciation at the higher rate should not be allowed under the Entry referred to above. According to the
Tribunal, since the Revenue did not dispute that the machinery in the sugar factory came into contact with corrosive chemicals, it upheld the view
taken by the AAC. The Tribunal also noted that the Revenue had not appealed against the allowance of similar claim for the preceding asst. yr.
1970-71 by the AAC.
Before us, the learned standing counsel appearing for the Department submitted that the assessee is not entitled to higher depreciation since the
machinery used in the said factory are not coming into contact with corrosive materials. Reliance was placed upon the decision of the Punjab and
Haryana High Court in Commissioner of Income Tax Vs. Saraswati Industrial Syndicate Ltd., wherein the Punjab & Haryana High Court held that
the filtered sugarcane juice which comes into contact with the machines before it is converted into crystallised sugar cannot be said to be a
corrosive chemical. Therefore, the Tribunal was not right in holding that the words ""corrosive chemicals"" employed in Entry (ii) B (7) of Para III of
Pt. 1 of Appendix 1 to the IT Rules, 1962, contemplated not only free chemicals but also non-free chemicals of corrosive effect. This decision was
rendered after referring to the decision reported in Saraswati Industrial Syndicate Ltd. Vs. Commissioner of Income Tax, .
Reliance was also placed upon the decision of the Andhra Pradesh High Court in K.C.P. Ltd. Vs. Commissioner of Income Tax, wherein the
assessee claimed higher depreciation at 15 per cent in accordance with s. 32 r/w IT Rules, 1962, Appendix I, Part I, Entry III(ii) B, Item 7. Here
also the assessee was carrying on business in manufacture of sugar. While considering the request made by the assessee, the Andhra Pradesh High
Court held that the nature of the corrosive chemicals involved and how, in the process of manufacturing, the plant and machinery came into contact
with those corrosive chemicals should have been explained precisely by the assessee. At no stage of the proceeding did the assessee place before
the IT authorities the relevant details to appreciate the contention that corrosive chemicals came into contact with the assessee''s plant and
machinery during the course of manufacture of sugar. The finding of the ITO was categorical that the assessee''s plant and machinery was not
coming into contact with any corrosive chemicals and it was also the finding of the Tribunal. This finding was a finding of fact and no question of
law arose.
The learned standing counsel for the Department also brought to our notice the decision of the Madhya Pradesh High Court in Gwalior Sugar
Co. (P.) Ltd. Vs. Commissioner of Income Tax, , wherein the Madhya Pradesh High Court held that though the machinery used in the manufacture
of sugar comes into contact with molasses, which contains iron, lead and copper; iron lead and copper are not corrosive chemicals and hence the
machinery used in the manufacture of sugar is not entitled to higher rate of depreciation. The Madhya Pradesh High Court followed the decision
rendered by the Punjab & Haryana High Court in the case of CIT vs. Saraswati Industrial Syndicate Ltd. (supra).
In this context, the learned counsel appearing for the assessee relied upon the decision of the Delhi High Court in CIT vs. Bharat Commerce &
Industry Ltd. (1992) 193 ITR 375 . According to the facts arising in that case the assessee claimed higher depreciation at 15 per cent, since the
machinery used in the manufacture of synthetic yarn are coming into contact with corrosive materials. While answering the question raised on this
aspect, the Delhi High Court held that the decision on this aspect depends upon the facts arising in each case with regard to the machinery coming
into contact with corrosive materials. According to the Delhi High Court once the machineries are coming into contact with corrosive material, the
assessee is entitled to higher rate of depreciation.
The learned counsel appearing for the assessee also relied upon the decision of the Karnataka High Court in Kodiyal Foods and Fats Pvt. Ltd.
Vs. Commissioner of Income Tax, , wherein the Karnataka High Court allowed higher depreciation since the machineries are coming into contact
with corrosive materials. The assessee who processed fish, fish meal and fish oil claimed depreciation at 15 per cent on machinery used in its
business on the ground that it came into contact with corrosive chemicals. A certificate/report of the Asstt. Professor of Chemical Engineering, who
certified that the machinery in question came into contact with the corrosive chemical, viz., sodium chloride and further that the factory was situated
on a sea shore, causing severe atmospheric corrosion to the entire plant and machinery. This certificate was accepted by the High Court while
answering the question whether the assessee is entitled to higher depreciation since the machinery is coming into contact with sodium chloride
(common salt) in favour of the assessee.
A combined reading of the decisions produced before us would go to show that in order to get higher depreciation of 15 per cent under Entry
B(7) in Item (ii) Special Rates under the Head III, Machinery and Plant in Appendix I, Part I of the IT Rules, 1962, the assessee must establish
that the machinery used for manufacturing its products are coming into contact with corrosive materials. In the present case the learned counsel
appearing for the assessee submitted that the assessee has produced a list of chemicals coming into contact with machinery used in the production
of sugar. After verifying these facts, the AAC held that the assessee is entitled to higher depreciation. It was also pointed out that in the earlier
years in the case of the same assessee, this finding was accepted by the AAC. For these reasons it was submitted that the assessee satisfied on
facts that the machinery used in the manufacture of sugar came into contact with corrosive materials. The list showing the chemicals used in the
manufacture of sugar produced before the AAC was not made available before us. It is also not known as to what are the machineries which came
into contact with what kind of corrosive materials. In the absence of these particulars, we consider that the proper course would be to direct the
Tribunal to verify this aspect and allow higher depreciation if the machinery used by the assessee for manufacturing sugar came into contact with
corrosive materials. Accordingly we do so. The Tribunal is directed to verify this aspect and grant relief if the assessee satisfied on facts that its
machineries came into contact with corrosive chemicals. In that view of the matter, this question is also returned un-answered.
Question No. 3 also deals with grant of higher development rebate by the Tribunal. According to the Tribunal, the assessee is entitled to higher
development rebate, as per the V Schedule r/w s. 33(1)(b)(B)(i) of the Act. We also heard the learned counsel appearing for the assessee, who
submitted that after furnishing proper materials on this aspect and after verifying the same, the authorities below and the Tribunal allowed higher
development rebate. But before us no material is available on record to verify whether the assessee is entitled to higher development rebate. It is
not known as to what are the industrial machineries that were used by the assessee in the assessment year under consideration for grant of higher
development rebate. In such circumstances, we are unable to answer the question relating to this aspect one way or the other. Accordingly, we
direct the Tribunal to ascertain the facts on this aspect and decide the same in accordance with law after hearing the learned counsel appearing for
the assessee. Therefore, on this aspect also we are not providing any answer to question No. 3. Accordingly the same is returned un-answered.
No costs.