COMMISSIONER OF INCOME TAX Vs. ORISSA CEMENT LTD

JUDGEMENT

(1.) AT the instance of the Revenue, two questions, which are in the following terms, have been referred by the Tribunal for opinion of this Court, under S. 256(1) of the IT Act, 1961 (in short 'the Act') :

(2.) ALTHOUGH the questions are required to be answered separately, it may be profitable to note facts of the matter at the outset. The respondent is company engaged in the business of manufacture of cement production for which limestone has to be extracted. It has its own refractories division. The company during the asst. year 1972 73 claimed depreciation on the scientific equipment of the value of Rs. 1,47,305. The said claim was allowed. In relation thereto the first question has been referred to this Court for its opinion. As regards the question it may be noticed that there is no dispute with regard to the fact that the respondent industry is a priority industry. Its claim for relief under S. 80 I of the Act r/w item No. 12 of Sch. VI appended thereto have been rejected on the ground that said provision was not applicable.

(3.) MR . Pandey, learned counsel appearing on behalf of the Revenue, would submit that having regard to the provisions contained in S. 35(1)(iv) of the Act as the assessee had taken benefit thereof, the question of claiming depreciation, therefore, in terms of S. 35(2)(iv), which was inserted by the amending Act of 1979, w.e.f. 1st April, 1972, item No. 12, did not arise.