ORDER SHEET ITR NO.44 OF 1997 IN HIGH COURT AT CALCUTTA SPECIAL JURISDICTION(INCOME-TAX) ORIGINAL SIDE EAST INDIA HOTELS LTD. Versus C.I.T.WB-II CAL. BEFORE: Hon'ble JUSTICE ANIRUDDHA BOSE Hon'ble JUSTICE ARINDAM SINHA Date : 30th November, 2017. MR.SIDDHARTH DAS, ADVOCATE FOR APPELLANT MD.NIZAMUDDIN, MR.P.DUDHERIA,ADVOCATES FOR RESPONDENT Court : main question on which reference has been made is whether assessee is entitled to investment allowance on its new plant and machinery, electric installations, air conditioners etc; under Section 32A(1) of Income Tax Act, 1961. assessee is involved in business of hospitality and operates several luxury hotels. For assessment years 1978-79, 1979-80 and 1980-81 they claimed deduction under said head at rate of 25% of value of aforesaid items. Such claim was rejected by assessing officer. In 2 appeal by assessee, Commissioner of Income Tax (Appeals), was of view that assessee s business came within ambit of industrial undertaking and directed assessing officer to allow investment allowance to assessee. Revenue carried said decision in appeal before Tribunal and Tribunal set aside order of Commissioner relying on decision of Coordinate Bench of this Court in case of CIT Vs S.P.Jaiswal Estates (P) Ltd. (196 ITR 179). present reference is in respect of aforesaid decision of Tribunal. Three questions have been framed for our opinion in this reference:- (1) Whether on facts and in circumstances of case, Tribunal was right in holding that assessee is not entitled to Investment Allowance on its machinery or plant under section 32A(1) of Act when such machinery or plant is not installed in any other Industrial undertaking for purpose of manufacture or production of any Article or thing as referred to in sub-clause (iii) of sub-section (2) of section 32A of Act? (2) Whether assessee which manufactures or produces any articles or thing in its business of operating hotels is industrial undertaking and if so, whether Tribunal was right in refusing to allow Investment Allowance on such machinery or plant ? 3 (3) Whether on facts and in circumstances of case Tribunal was right in vacating CIT(A) s order relating to weighted deduction u/s 35B of I.T.Act when no order under section 263 of I.T.Act existed on date of its order on 25.1.94 in view of fact that Tribunal set aside CIT s order u/s 263 on 24.6.90 and CIT had not passed any fresh order u/s 263 in pursuance of Tribunal s order ? Mr.Das, learned counsel appearing for assessee, however, has not pressed third question before us and hence we shall not address that question. So far as first two questions are concerned, we find them to be interrelated. But legal point involved in these two questions at present stand settled by judgment of Hon ble Supreme Court in case of CIT Vs. Anand Theatres reported in 244 ITR 192. This judgment upholds stand of revenue. In respect of same assessee, Coordinate Bench of this Court in ITA No. 173 of 1999 Commissioner of Income Tax, West Bengal- III, Calcutta Vs. East India Hotels Ltd. answered main question in favour of revenue. That decision was delivered on 25th November, 2013. We have followed aforesaid two authorities in judgment delivered on 23rd October, 2017 in ITA No.48 of 1998 in respect of this assessee only for assessment year 1986-87. 4 points raised by assessee in this reference thus is covered against it. We, accordingly, answer question nos.1 and 2 in negative and in favour of Revenue. reference is, accordingly, disposed of. (ANIRUDDHA BOSE, J.) (ARINDAM SINHA, J.) sb. East India Hotels Ltd. v. CIT, WB-II, Calcutta