B. C. MITRA, A. M.: Departmental appeal was earlier disposed of by Tribunal s consolidated order dt. 21st Jan., 1980 in I.T.A Nos. 715 & 716/Bom/1979. Subsequently on basis of Miscellaneous petition No. 97/Bom/2980 moved by Department, Tribunal vide its earlier order in M. A. No. 97/Bom/1980 dt. 27th Oct., 1980, restored appeal for enabling Tribunal to adjudicate upon grounds No. 4 and 5 which were not decided in earlier order of Tribunal dt. 21st Jan., 1980. After hearing both parties, we dispose of ground Nos. 4 and 5 of Departmental Appeal pertaining to asst. yr. 1975-76 as under: In ground No. 4, point raised is that CIT(A) erred in directing ITO to allow development rebate on lights as also initial depreciation on same. Tribunal in their earlier order dt. 21st Jan., 1980 vide para 5(b) of their order held that lights installed in assessee s factory were "absolutely essential for purpose of business of assessee", and consequently they constitute 'plant within meaning of s. 43 (3). Tribunal accordingly held that CIT (A) was justified in directing ITO to allow development rebate on expenditure incurred on lights installed in factory premises of assessee. While deciding issue, Tribunal inadvertently did not adjudicate on point whether assessee was entitled to deduction of initial depreciation claimed on expenditure incurred on lights. Both ld. Representatives of rival parties were in agreement that in case it was held that lights installed in assessee s factory were held to be 'plant fact that assessee has been allowed deduction by way of development rebate would not debar assessee from claiming deduction on account of initial depreciation as provided in s. 32 (1)(vi) of IT Act 1981. ld. Departmental Representative brought to our notice recent decision of Bombay High Court in case of CIT vs. Sandvik Asia Ltd. (1983) 33 CTR (Bom) 128: (1983) 144 ITR 585 (Bom) and decision of Bombay High Court in case of CIT vs. Union Bank of India Ltd. (1976) 102 ITR 270 (Bom) which were not considered by Tribunal while disposing of Departmental ground whether assessee was entitled to development rebate on expenditure incurred for installation of lights. It has been stated that matter may be considered afresh, as light installations did not form part and parcel of factory machinery and consequently CIT (A) was wrong in directing ITO to allow initial depreciation on expenditure incurred by assessee on light installation. Tribunal, in para 5(b) of their order in I. T. A. Nos. 715 & 716/Bom/1979 (supra), on due consideration of submissions that were made both by Departmental Representative and assessee s counsel held as follows: In our opinion, assessee deserves to succeed. word 'plant must be given wider meaning. In its ordinary sense, it includes whatever apparatus is used by business man for carrying on his business. In view of submissions of ld. Representative of assessee, we hold that since lights under consideration are absolutely essential for purpose of business of assessee, they constitute plant within meaning of s. 43 (3). CIT (A) has, therefore, rightly allowed development rebate in respect of expenditure on same." Bombay High Court decision in CIT vs. Union Bank of India (supra) on which reliance was placed by Departmental Representative, in fact supports assessee s case. In that case, point for consideration before High Court was whether safe deposit vault in Bank was 'plant so as to entitle bank of allowance of development rebate on such safe deposit vault. Th High Court, after considering Dictionary meaning of word 'plant held that safe deposit vault in Bank is apparatus or fixture employed in carrying on trade or business which is not its stock-in-trade and as such would fall within meaning of 'plant . In case of Sandvik Asia Ltd. (supra), Bombay High Court held that essence of test to determine whether asset can be called plant is to ascertain whether it can be treated as apparatus which is used by businessman for carrying on business and whether with that asset he carries on trade as opposed to place where and setting in which trade was carried on. point as issue in that case was whether roads within factory premises were entitled to development rebate as 'plant . High Court held that road constructed by assessee in premises of factory could not constitute 'plant as defined in s. 43 (3) of IT Act, 1961. In instant case, as we have noted earlier, Tribunal in its earlier order dt. 21st Jan., 1980, gave finding of fact that lights which were installed in factory premise were absolutely essential for carrying on business by assessee. In this view of matter, Tribunal held that light installations came within ambit of s. 43(3) and consequently in respect of expenditure incurred on same, assessee was entitled to development rebate. Since we agree with aforesaid finding of Tribunal, we hold that assessee is entitled to deduction of initial depreciation claimed on light installations. CIT (A) s order in this regard is accordingly upheld. In ground No. 5, point raised is whether CIT (A) has erred in directing ITO to ignore liabilities in computing capital base for working out relief allowable in terms of s. 80J of Act. point at issue now stands concluded by Supreme Court decision in case of Lohia Machines Ltd. and Anr. vs. Union of India & Others (1985) 44 CTR (SC) 328: (1985) 152 ITR 308 (SC). it has been held that sub-r. (3) of r. 19A of IT Rules, 1962, insofar as it provided for exclusion of borrowed monies and debts and particularly long-term borrowings in computation of 'capital employed by new industrial undertaking for purposes of tax exemption could not be said to be outside rule making authority concurred on CBDT under s. 80J(1) of IT Act. 1961. It has been further held that r. 19A, insofar as it provided for computation of "capital employed": as on first day of computation period, was within rule-making authority of CBDT under s. 80J(1). Supreme Court further held that since r. 19A did not suffer from any infirmity and was valid in its entirety, Finance (no. 2) Act, 1980, insofar as it amended s. 80J by incorporating provisions of r. 19A, as sub-s. (1A) in s. 80J with retrospective effect from 1st April, 1972 was merely clarificatory in nature and was accordingly valid. In view of aforesaid Supreme Court decision, we uphold ITO s order by reversing CIT (A) s order. In result, ground No. 4 is decided against Department and ground No. 5 is decided in favour of Department. In other words, appeal is partly allowed. *** INCOME TAX OFFICER v. BOMBAY DYEING & MFG. CO., LTD.