(1.) THE Tribunal, Ahmedabad Bench 'A' vide its order dt. 9th Aug., 1983 at the instance of CIT had drawn statement of case and submitted to this Court for opinion following question of law said to be arising out of its order in ITA No. 833/Ahd/1982 relating to asst. year 1978 79.
(2.) THE facts as appear from the statement of case are that assessee has claimed extra shift allowance in respect of air conditioners used by it for its unit of crimping yarn. The air conditioners were fitted separately to the wall of the room. The Tribunal also found that the air conditioners were necessary for crimping yarn. On this finding the Tribunal by applying the decision of the Gujarat High Court in Industrial Machinery Manufacturers (P) Ltd. vs. State of Gujarat (1965) 16 STC 380 (Guj), held that air conditioners are plant and being essential for running crimping unit it fell in item (3) of S. (ii) B of Appendix (Part I) Part III and the assessee was entitled to extra shift allowance in respect of air conditioners.
(3.) BEFORE proceeding further, we may deal with the preliminary objection raised by the learned Counsel for the assessee. It was urged that since the Tribunal has found that air conditioners are part of the crimping machinery and that finding has not been challenged by raising a specific question, no further question for considering air conditioners as not crimping machinery but some other machinery can arise for consideration. Having carefully read the order of the Tribunal, we are of the opinion that this reading of the finding as such is not appropriate reading of the order. The context of two certificates which have been produced by the assessee in support of his case that air conditioners are necessary for use of crimping machinery and that crimping yarn plant cannot function without air conditioners as such air conditioners as are installed in a crimping yarn unit must necessarily be treated artificial art silk plant. In the light of this plea the two certificates reproduced in the order itself reads in no unmistakable terms that what is meant by this finding is that use of air conditioners are necessary and essential for the process of crimping of nylon yarn or for the functioning of crimping machinery. The certificate from South Gujarat Textile Processors Association reads that "air conditioners (apparatus) is part and parcel for the working of crimping machine in a crimping unit and without the simultaneous working of air conditioning machine, no crimping machinery can work. Therefore, in a crimping unit which works for 24 hours the air conditioning machinery must work for 24 hours''. The other certificate reads "This is to certify that crimping of Nylon yarn on a crimping machine is always done in an air conditioned atmosphere." It is on the basis of these two certificates that the finding of the Tribunal has been recorded. The true meaning of finding has to be read in the context of contention about such fact has been raised. In the light of assessee's own case, the finding is acceptance of his plea that air conditioners are necessary for the use of crimping machinery for carrying on the process of crimping of Nylon yarn.