K.K. Usha, J.
1. This reference at the instance of the Revenue arises out of the order passed by the Income-tax Appellate Tribunal, Cochin Bench, in I. T. A. No. 237/Coch. of 1979. The relevant assessment year is 1977-78. The following is the question referred for the opinion of this court ;
'Whether, on the facts and in the circumstances of the case and especially taking into consideration the fact that the Barium Carbonate (Expansion) Plant has been treated as a separate industrial undertaking for the purpose of allowing deduction under Section 80J on it, the Tribunal was right in holding that the entire operations carried on by the assessee were the operations of one concern and in allowing, in that view, the claim of the assessee for extra-shift depreciation allowance in respect of the plant and machinery comprised in the said Barium Carbonate (Expansion) Plant even though that particular unit had worked only for 43 days during the year ?'
2. We heard learned standing counsel for the Revenue as well as learned counsel for the assessee. The issue raised in this case relates to the claim put forward by the assessee for extra-shift depreciation allowance to the extent of Rs. 2,66,163. The assessing authority took the view that Barium Carbonate (Expansion) Plant was a new undertaking of the assessee and it had claimed relief under Section 80f. It had worked only for a period of 43 days during the relevant accounting year and, therefore, the claim for extra-shift depreciation allowance was limited to a period of 43 days. The first appellate authority also rejected the claim of the assessee which was affirmed by the Tribunal. Pursuant thereto, the assessee came up in reference before this court. This court remanded the matter back to the Income-tax Appellate Tribunal for a fresh decision. By judgment, dated December 2, 1991, reported in Travancore Chemical and , v. CIT : [1993]199ITR484(Ker) , this court took the view that the Tribunal had no opportunity to consider the case of the assessee in the light of the Circular No. 10/83/69, dated September 28, 1970, and the Instruction No. 1605, dated February 26, 1985, and that the question as to whether the assessee was entitled to the benefit of the circular and instruction has to be considered afresh by the Tribunal.
3. Pursuant to the above remand, the Tribunal had passed the order dated December 30, 1992. The Tribunal took the view that the entire operations carried on by the assessee were the operations of one concern and for that reason, it allowed the claim of the assessee for the full extra-shift depreciation allowance, even though one of the units had worked for less than 300 days. Learned standing counsel for the Revenue contends that what has to be considered under the instruction is the claim of extra-shift allowance in respect of the factory. Where a concern has more than one factory, extra-shift allowance will be regulated for each factory in accordance with the circular and the instruction. The assessee which is having more than one factory cannot be treated as one unit and extra-shift allowance cannot be claimed or granted taking it as one unit. Learned counsel pointed out that a decision of a Bench of this court in I.T.R. No. 92 of 1991 in the case of the assessee itself does not lay down correct law.
4. Learned counsel for the assessee, on the other hand, submits that his instructions are to the effect that the assessee had claimed extra-shift allowance separately in respect of its each factory. The Barium Carbonate (Expansion) Plant is one among four plants in the factory of the assessee at Metoor established in the year 1966. The barium carbonate plant was undergoing an expansion during the relevant year and it was not a new plant at all. Even if it is a new plant, the submission is that a plant or machinery cannot be treated as a factory. One factory may consist of more than one plant or machinery. Under such circumstances, according to learned counsel, the provisions of the circular and the instructions are directly applicable in the case of the assessee and it is entitled to extra-shift allowance as claimed.
5. By the earlier judgment, this court had remanded the matter to the Tribunal for fresh consideration as to whether the assessee is entitled to claim extra-shift allowance in the circular dated September 28, 1970, and the instruction dated February 26, 1985, We do not find that the Tribunal has entered necessary findings on fact to consider the claim of the assessee under the above-mentioned circular and instructions. The Tribunal had just found that the entire operations carried on by the assessee were the operations of one concern and for that reason, the assessee is entitled to full extra-shift allowance, even though one of the units had worked for less than 300 days. The above finding cannot be considered as consideration of the claim of the assessee under the provisions of the circular and the instructions. The enquiry should have been, (1) whether the assessee is having more than one factory, (2) whether it is claiming extra-shift allowance with relation to each factory, and (3) whether the Barium Carbonate (Expansion) Plant is an independent factory or part of a factory.
6. The Tribunal will consider the matter afresh in the light of the observations contained in this judgment. We, therefore, decline to answer the question referred.
7. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.