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1. As common questions of law with regard to the entitlement of investment allowance under Section 32A of the IT Act, 1961 (hereinafter referred to as "the Act") are involved in these three appeals, therefore, they are being disposed of by this common judgment.

Though the facts in three appeals are little bit different as referred hereunder:

(i) D.B. IT Appeal No. 41 of 2002:

2. In this appeal, the assessee was carrying on business of excavation of limestone and sale thereof. The AO allowed investment allowance of Rs. 3,30,292 while making assessment under Section 143(3) of the Act for the asst. yr. 1990-91 on the cost of loaders and dumpers vide Annex. 1 but the CIT passed the order under Section 263 of the Act and held that the assessee is not entitled to investment allowance under Section 32A of the Act by holding that the dumper/loader is a motor vehicle vide Annex. 2. In appeal, the Tribunal, Jodhpur set aside the order of the CIT and restored the order of AO granting investment allowance on dumpers and loaders as not being road transport vehicles vide Annex. 3.

(ii) D.B. IT Appeal No. 42 of 2002:

3. In this appeal also, the assessee was carrying on business of excavation of limestone and sale thereof and was granted investment allowance on dumpers for a sum of Rs. 2,70,747 while making assessment under Section 143(3) of the Act for the asst. yr. 1989-90 vide Annex. 1, but in appeal (sic), the CIT, Jodhpur passed the order under Section 263 of the Act that dumper is a road transport vehicle and the assessee is not entitled to investment allowance on dumpers vide Annex. 2. In appeal before the Tribunal, Jodhpur, the order of the CIT was set aside and that of the AO was restored by holding that assessee is entitled to investment allowance under Section 32A of the Act on the cost of purchase of new dumpers vide Annex. 3.

(iii) in any other industrial undertaking for the purposes of business of construction, manufacture or production of any Article or thing, not being an Article or thing specified in the list in the Eleventh Schedule.

9. From a bare reading of this Sub-section (1), it appears that a ship or aircraft or machinery or plant specified in Sub-section (2) should be owned by the assessee and wholly used for the purpose of business carried on by him. Clause (b) to second proviso of Sub-section (1) of Section 32A debars road transport vehicles from the purview of deduction as investment allowance. There is no dispute with regard to the fact that in all the three appeals, loaders, dumpers, tippers and hydraulic excavators are owned by the assessee respondents. The question for determination before us is as to whether these machines are road transport vehicles and are wholly used for the purpose of business carried on by the assessee. We first take up the question of machines like tippers, dumpers and hydraulic excavators, which are either used as road transport vehicles or not ?

21. In Chief General Manager's case (supra), the dumpers were subjected to tax under the Orissa Motor Vehicles Taxation Act, 1975 because they were running on the roads.

22. In Shiv Construction v. CIT (supra), the Gujarat High Court held that dumpers are road transport vehicles and are not entitled to development rebate under Section 33A of the Act. That was a case of development rebate under Section 33A of the Act and the question was not examined on merit, as the counsel for the assessee conceded that dumpers are road transport vehicles. In that case, the Court further observed that the Revenue cannot take up an inconsistent stand that the dumpers were road transport vehicles for the purpose of development rebate and that they were not so for the purpose of depreciation.