IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE MRS. JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO REFERRED CASE NO : 110 OF 1996 Between: Commissioner of Income Tax, A.P-II, Hyderabad. ..... PETITIONER AND Singh Poultary Private Ltd., Hyderabad .....RESPONDENT The Court made the following : JUDGMENT: (per THE HON’BLE MRS. JUSTICE T.MEENA KUMARI) The present R.C. is referred on the following questions of law: 1. Whether, on the facts and in the circumstances of the case, the ITAT is correct in law in holding that after egg-laying period is over, the birds are worth not more than scrap? 2. Whether on the fats and in the circumstances of the case, the ITAT is correct in law in holding that investment allowance allowed to the assessee on the birds should not be withdrawn under Sec. 32A(5) of the Act, particularly, when the assessee’s case was hit by Sec. 32A(5)(a)? Learned counsel for the applicant, at the outset, submits that the questions referred are covered by a Division Bench judgment of this court in R.C. No. 7 of 1996 dated 24.10.2007 which is rendered based on the decision of the Apex Court in Commissioner of Income Tax Vs. Venkateswara Hatcheries (P) Ltd.,([1]) answering the reference in favour of the Revenue and against the assessee. The learned counsel for the respondent has argued that so far as the first question is concerned, it is not covered by the decision of the Supreme Court, inasmuch as the Apex Court did not deal with the question as to whether the birds after egg-laying period was over, should be treated as not more than scrap and, therefore, the decision rendered the Division Bench of this court in R.C. No. 7 of 1996 does not apply to the facts and circumstances of the case. He fairly submits that the first question as to whether the birds after the egg laying period is over should be treated not more than scrap, is of academic interest and, hence, this court is not called upon to answer the same. As can be seen from the judgment of the Apex Court, it did not deal with the question as to whether the birds after the egg laying period is over should be treated not more than scrap and, hence, we are of the view that this question is not covered by the decision of the Apex Court. Insofar as the second question is concerned, the Supreme Court in the above decision has categorically held that neither the undertaking engaged in the business of hatcheries can be held to be an industrial undertaking nor its business can be termed as producing articles or things and as such those engaged in the said business are not entitled for investment allowance in terms of Sec.32-A of Income Tax Act. Following the same, we hold that the assessee/respondent is not entitled to the investment allowance. The reference is therefore answered in favour of the Revenue and against the assessee. ____________________ Justice T.Meena Kumari __________________________ Justice Nooty Ramamohana Rao March 18, 2010 MAS [1] (1999) 3 SCC 632