Cit Vs. Ajay Builders - Court Judgment

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counsels: manish r. bhatt, for the revenue in the gujarat high court m.s. shah & k.a. puj, jj. - sections 4(3), proviso, 5 & 6: [m.s. shah, d.h. waghela & akil kureshi, jj] complaint alleging inaccuracy or deficiency in maintaining record in prescribed manner as required under section 4(3) - held, it need not contain allegation of contravention of provisions of section 5 or section 6. burden to prove that there was contravention of provisions of section 5 or 6 does not lie upon prosecution. sections 5 & 6 & pre-conception & pre-natal diagnostic techniques (prohibition of sex selection) rules, 1996, rule 9: [m.s. shah, d.h. waghela & akil kureshi, jj] deficiency or inaccuracy in filling form f - held, deficiency or inaccuracy in filling form f prescribed under rule 9 of the rules made under pndt act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the pndt act and has to be treated and tried accordingly. it does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of section 5 or 6 of the act and the court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filing up the forms. for example, not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her. section 28: [m.s. shah, d.h. waghela & akil kureshi, jj] cognizance of offence held, use of the words appropriate authority twice, at the beginning and end of clause (a) of sub-section (1) of section 28, clearly conveys that complaint could be made by an officer who is authorised in that behalf by the central government, the state government or the appropriate authority, besides the appropriate authority itself. the power to delegate and authorise an officer to make a complaint is clearly conferred upon all the three authorities under the provisions of section 28, and, therefore, a court can take cognizance of an offence under the act on a complaint made by any officer authorised in that behalf by the appropriate authority.k.a. puj, j.at the instance of the revenue, following question of law is referred for the opinion of this court :'whether the tribunal is right in law and on facts in allowing the claim for investment allowance on plant and machinery engaged in the business of construction ?'2. the assessment year involved is 1983-84. the respondent in this case is a. registered firm engaged in the business of construction. the income tax officer in the course of the assessment proceedings, rejected the claim on account of investment allowance.3. the commissioner (appeals), however, directed the income tax officer to allow the claim. this he did relying upon the two decisions of the ahmedabad benches of the tribunal, namely, ranjit construction co. [it appeal no. 127 (ahd) of 1984, dated 9-11-1984] and shah engg. co. [it appeal no. 870 (ahd) of 1983, dated 24-1-1984].4. the tribunal confirmed the order of the commissioner (appeals).5. heard mr. manish bhatt, the learned senior standing counsel appearing for the revenue. no one appears on behalf of the respondent-assessee though the notice was duly served. at the time of hearing of this reference, our attention is drawn to the decision of the supreme court in the case of cit v. n. c. budharaja & co. : [1993]204itr412(sc) wherein it is held that the assessee is not entitled to investment allowance under section 32a because that provision did not comprehend within its ambit construction of dam, bridge, road or canal or other similar construction. it is further observed by the supreme court that particularly in view of the legislative history of the relevant provisions and the context, it is not possible to read the word 'construction' in section 32a(2)(b)(iii) as referring to construction of dams, bridges, buildings, roads or canals. since the issue involved in the present reference is directly covered by the above decision of the supreme court, we hold that the tribunal is not right in allowing the claim of the assessee for investment allowance for plant and machinery engaged in the business of construction.6. we, therefore, answer the question referred to us in, negative, that is, in favour of the revenue and against the assessee.7. the reference is, accordingly, dispose of with no order as to costs.