1. The assessee-company, M/s. Sandvik Asia Ltd., has a factory located at Pimpri, Poona. the assessee has constructed roads inside the factory premises lending from the gate of the factory to various buildings and leading from one building to the other. The assessee claimed depreciation on these roads but the ITO rejected the claim of the assays.
2. In the appeal file day the assessee, the AAC allowed the claim of the assessee on the bias that deprecation has been allowed for the earlier assessment year 1963-64. This view of the AAC wa challenged by the Department by an Appeal filed before the Income-tax Appellate Tribunal.
3. Before the Appellate Tribunal, in reply to the arguments on behalf of the Department, part from the contention that 'roads' were 'buildings' within the meaning of s. 32 of the I. T. Act, 1961, as the roads were within the factory premises connecting one production premises to another, an alternative contention was also raise that 'roads' were part and parcel of the plant within the meaning of s. 32 of the I. T. ACt and were entitled to deprecation allowable on that ground also. The Department's case before the Tribunal was that roads were nothing but a portion of th land and were indistinguishable from land as such and not only did not roads not amount to a stature but they were also not building within the meaning of the relevant provision of the I. T. ACt. However, relying on the decision of the Supreme Court in CIt v,. TaJ Mahal Hotel : 82ITR44(SC) , the Tribunal took the view that the said decision laid down that 'plant' includes whatever apparatus arrangement or contrivance is used by a businessmen for carrying on his business excluding stock-in-trade and road must be trade as 'plant'. the Tribunal referred extensively to a decision of another Bench of the Tribunal on the same question in which which Tribunal has held that where roads are used transporting materials from place to place, roads served the purpose of liking one part of the plant with the other and since in the absence of such a line various part of the plant cannot be operated and the desired product cannot be produced roads, must be treated as part of the plant and were entitled to depreciation allowance. Arising out of this order of the Tribunal the following question has been referred to this court under s. 256(1) of there i., T,. ACt, 1961, at the instance of the Revenue :
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the roads contracted by the assessee-company in the premises of its factory would constitute plant or 'building' within the meaning of section 32 read with section 43(3) of the income-tax ACt, 1961?'
4. The learned counsel appearing on behalf of the Revenue has mainly relied on the decision of this court in CIT v. Colour-Chem Ltd.  106 ITR 3223, in which the Division Bench of this Court laid down that roads or roadways laid out by the assessee-company four the purpose of linking several factory buildings within the factory premises and which have been used for the purpose of carrying raw materials and finished products must be regarded as building within the meaning of sub-cl. (vi) of s. 10(2) of the Indian I. T. ACt, 1922, and it was not possible to give a restricted of the Indian I. T. ACt, 1922, and it was not possible to give a restricted meaning to the expression 'building' occurring in s., 10(2) (vi) as being confined to a structure or super-structure having walls and roof over it. It was therefore, held that the road or roadways in that case has to be regarded as forming part of the factory building entitled to deprecation.
5. Mr. Joshi appearing on behalf of the Revenue has contended that in view of the decisions of the Division Bench it was not open to the court to consider the question as to whether roads within the factory premises can be treated as plant and that the question refereed must be answered in favour of the Revenue by holding that the roads constituted 'building' and not 'plant'
6. Mr. Dasture appearing on behalf of the assessee has contended that there is nothing in the decision of the Division Bench of this court in Colour) Chem Ltd.'s case : 106ITR323(Bom) , which precludes the consideration of the question as whether roads within the premises of the factory can be treated as 'plant' for the purpose of claiming depreciation and relying mainly on the decision of the Supreme Court in CIt v. TAj Mahal Hotel : 82ITR44(SC) , Mr. Dasture has contended that roads, m in the instant case must be treated as 'plant'.
7. Apart from this decision, heavy reliance has been placed by Mr. Dasture on a decision of the Court of Appeal in Jarrold H. M. Inspector of Taxes v. John Good & Sons Ltd.  40 TC 681, in which a special partitioning which allowed the assessee-company to sub-divide the floor space available in any way that it chose and did not form part of the structure of the building was treated as 'plant' and the company was held entitled to allowance under Chap. II, Pt. X of the I. T. Act, 1952 (U. K.).
8. Apart from these decisions the learned counsel has realised on certain other decisions in which a dry a swimming pool, soil or well sanitary fitting and safe deposit values have been treated a plants. We with the factory premises must be treated ass 'plant' because a road was essential for the operation of the whole factory as, without a road, goods would not be taken from one part of the factory to another. The learned contended that an asset which is in the nature of a building can also be a 'plant' : and that building and plant cannot be mutually exclusive. It is not necessary, according to the learned counsel for the assessee, that it must be shown that roads were the tools of a trade because in India the concept of a 'plant' has been very liberally construed as will appear from the decision in TAj Mahal Hotel's case : 82ITR44(SC) wherein sanitary fittings have been treated as plant.
9. Mr. Joshi appearing for the Revenue has invited out attention to two decision of this court in which the relevant test for decision s to where an asset can be called a plant has been laid down., The first decisions is in CIt v. Bank of India Ltd.  1118 809 (Bom) and the other is the decision in CIt v. Emco Electro Pvt. Ltd. : 118ITR864(Bom) . the learned counsel contended that having regard to the test laid down in these cases, roads within the factory premises cannot be held to be 'plant'.
10. AT the outset it is necessary to refer to the decision in Colour-Chem Ltd.'s case : 106ITR323(Bom) . The assessee in that the case was carrying on business in the manufacture and sale of pigments, pigment emulsion, distemper and other chemicals, dyes,. etc., and in the assessment year 1961-62, the company has claimed depreciation allowance on the roadways inside the factory premises. The Tribunal in that case held that the roadways formed part of the factory building but did not accept the alternative contention of the assessee that they constituted plant. Two question were, thereof, referred to this court for opinion as follows :
' (1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the roadways inside the factory premises of the assessee-company come in the category of 'building' and as such are entitled to depreciation under section 10(2) (vi) of the Indian Income-tax Act, 1922 ?
(2) If the answer to question No. 1 is in the negative, whether, on the facts and in the circumstance of the case, the roadways in the factory premises would be entitled to deprecation as 'plant' under section 10(2) (vi) of the ACt?'
11. While dealing with the first question the Division Bench took the view that the roads or roadways within the factory premises will have to be regarded as adjusts to the factory buildings or things appurtenant to the factory buildings since these link the various factory buildings lying within the premises and ewer used for carrying raw materials for finished products and the expenditure in incurred on the roads or roadways will have to be regarded as expenditure on buildings and depreciation must, therefore be allowed.
12. So far as the second question Viz., whether the roads or roadway laid out by the assessee-company constitute plant or not, the Division Bench found that it was not necessary to deal with the question since the first question was answered in favour of the assessee. The observations of the Division Bench in the last para. of the judgment are as follows (p. 329 of 106 ITR) :
'On there question as to whether the roads or roadways laid out by the assessee-company in the factory premises continue plant or not, which is the subject-matter of the second question referred to us, we are clearly of the view that the frame of th second question itself suggest that that questions will not arise in view of our answer to the first question, m for the second question arises only if the first question in answered in the negative. Since we have answered the first questions in the affirmative, there is no necessity to deal with the second questions, as it does not survive.'
13. It is clear from the above-quoted observations that the question as top whether roads nd roadways within the factory premises can be treated as plant has not at all been considered by the Division Bench and that questions is therefore, still open for consideration.
14. Now, 'plant' has been defined in cl. (3) of s. 43, the material part of which read as follows :
'43. In sections 28 to 41 and in this section, unless the context otherwise requires-........
(3) 'plant' includes ships, vehicles, books, scientific apparatus and surgical equipment used for the purposes of the business or profession.'
15. It is now a well-accepted portion that the word 'plant' has to be widely construed and though 'plant' has nowhere been defined except for the inclusive part of the definition, the classic observations of Lindley L. J. in Yarmouth v. France  19 QBD 647, have long been accepted as a good guidance. Construing the word 'plant' as it appeared in the Employers' Liability ACt, 1880, Lindley L. J. observed as follows (p. 658) :
'There is no definition of plant in the ACt : but in its ordinary sense, it includes whatever apparatus is used by a businessman for carrying on his business,-not his stock-in-trade which he buys or makes for sale' but all goods and chattels, m fixed or movable live or dead, which he keeps for permanent employment in his business.'
16. This was adopted as a general test for understanding the meaning of the word 'plant' by the House of Lords, and it is clear that emphasis in the above passage is on the words 'apparatus used for carrying on business. ' This test wa qualified later on and the observations of Uthwatt J. in J. Lyons & Co. Ltd. v. Attorney-General  1 Ch 281 , that plant doe not incline the place in which the business is carried on, have also now been accepted as a useful guideline. In that decision, Uthwatt J. observed, p. 286 : 'confining my attention to trade plant. I am content to accept the general description in Yarmouth v. France  19 QBD 647, that 'plant' includes whatever apparatus or instruments are used by a businessmen in carrying on his business. The term doe not include stock-in-trade nor doe sit include the place in which the business is carried on. Whether any particular article more properly falls within 'plant' as thus understood or in some other category depends on all the circumstance of the case.' Summarizing the tests, Lord Donovan in IRC v. Barclay, Curle & Co. Ltd.  76 ITR 62, which for brevity may be referred to as : judgment in the dry dock case', observed as follows (p. 82) :
'There is no statuary definition of the word. But is it at least clear from section 276 of the Income Tax ACt of 1952, that the terms 'plant' and 'building' or structure are not mutually exclusivie. There may in other words, be some buildings or structure which can also properly be called 'plants.
What, however are the tests which enable one to recognise any such case? these have been left to the courts to formulate. Lindley L. J. did it in Yarmouth v. France  19 QBD 647, in language which despite the great technological advances since his day is still of great help. Uthwatt j. (as he then was) said in J. Lyons & Co. Ltd. v. Attorney-General  1 Ch 281 , that pant did not include the place where the business was carried on : and my noble and learned friend, Lord Person, when sitting in the Court of Appeal in Jarrold v. John Good & Sons Ltd.  40 TC 681, spoke of plant being that with which the trade is carried on, as opposed to the place where it was carried on.'
17. WE shall have occasion later to deal in some detail with the 'Dry Dock' case IRC v. Barclay, Curle & Co. Ltd.  76 ITR 62 and Jarrold's case  40 TC 681 , but it is sufficient for the time being to point out that the essence of the test to determine whether an asset can be called a plant is to ascertain whether it can be treated as an apparatus which is used by a businessmen for carrying on business, and whether with that asset, he carries on the trade as opposed to the place where, and the setting in which, the trade was carried on. The was the test laid down by this court in Bank of India's case : 118ITR809(Bom) , cited supra and the Division Bench quoted extensively from the decision of the Gujarat High Court in CIt v. Elecon Engineering Co. Ltd.  965 ITR 672, in which the Gujarat High court has laid done the test in the following words (headnote) :
'The relevant test to be applied is : Does it fulfill the function of plant in the assessee trading activity? Is it the tool of the taxpayer's trade? It is is, then it is plant, no matter that it is not very long-lasting or does not contain working part such as a machine does and plays a merely passive role in the accomplishment of the trading purpose.'
18. The Division Bench in Bank of India case (supra), referred to an earlier decisions of this court in CIt v. Union Bank of India Ltd. : 102ITR270(Bom) , in which a safe deposit value in a bank was held to be apparatus or fixture employed in carrying on trade or business which was not its stocks-in-trade and was held to fall within the meaning of 'plant' as defined in s. 43(3) of the I. T. ACt, 1961. The decision in Yarmouth v. France  19 QBD 647 and Lyons (J.) & Co,. Ltd. v. Attorney-General  1 Ch 281, were relied up in that decision. In Bank of India's case (supra), was followed. So far as the question of electrical installation being treated as plant was concerned, the question posed was 'whether the installation could be regarded as something, apparatus or fixtures, used by the assessee for carrying on its business? ' It was observed that a plant may include whatever apparatus or instruments as are used by a businessmen in the carrying on of business but it would not include the sort-in-trade or the place in which the business is carried on, an proceedings on the footing that there wa no finding by, nor a claim before, any of the taxing authorities that the electric installations in respect of which the claim for development rebate was made, were 'special electrical installations absolutely necessary for the purpose of carrying on the banking business of the assessee', it was held that it would be difficult to regard electrical installation as plant with which the assessee's business carried on, and 'they would appear merely to be a part of the premises in which the business is carried on or, to use the words in J. Lyons case  1 Ch 281 , a part of the setting in which the business is carried on' (p. 817-818 of 118 ITR). The electrical installations were, therefore, held not to be plant.
19. The same test was also applied in Emco Electro P. Ltd.'s case : 118ITR864(Bom) . that was a case in which the question whether the technical know-how sold to the assessee under an agreement constituted part of the assessee's plant within the meaning of the term as defined in s. 43(32) and whether the assessee would be entitled to allowance of development rebate thereon. Put was held, applying the test in Yarmouth v. France  19 QBD 647, that so far as the use of machinery for the production of articles manufactured by the assessee is concerned, it would be impossible for the assessee to use that machinery unless he had the technical know-how and that the sum paid for the acquisition of the technical know-how has to be taken into account for the purpose of allowance of development rebate and depreciation as claimed by the assessee. We have, therefore, m no doubt that if the property test to be applied is whether the article or asset concerned is apparatus or instrument owned by the businessmen for carrying on the business or whether it provides a setting for th business carried on, the road, within the premises of the factory would fall within the second category. Roads are not something with which the business is carried on. In any case, it has new been so held by this court in Colour-Chem Ltd.'s case : 106ITR323(Bom) , that road within the factory premises are adjuncts on the factory buildings and, therefore, m must be treated as buildings. Roads do not have any part in production as such to be treated as plant. Pure and simple they are factory buildings used as place where production goes on and cannot therefore, be treated as 'plant'. Consequently, it is, therefore, difficult to accept the argument that the roads which are adjunct to the buildings could be treated in any different way.
20. The main foundation of the argument of the learned counsel for the assessee that roads must be treated as 'plant' was the decision of the Supreme court in Taj Mahal Hotel's case : 82ITR44(SC) , and the decision in Jarrold's case  40 TC 681 . Before we go to the decision of the Supreme Court in the TAj Mahal Hotel's case it is necessary to dale with the decision in Jarrold's case. The facts of that case were that the respondent-company carried on the business of shipping agent and to satisfy its fluctuating accommodation requirements, the company made use of special partitioning which allowed it to sub-divide the floor space available in any way that it chose. The partition were secured by screws to the structure of the buildings only at the floor and ceiling and it wa relatively a simple operation to move them from one position to another. It was common ground that the partitioning did not form part of the structure of the buildings. The statement of the case refers to the following facts which were either proved or admitted (P. 682) :
' (i) The work of each Department fluctuates from time to time over the years and throughout any particular year, necessitating increases in or a diminution of the staffs of such Department with the consequent need for more or less office accommodation to accommodate that Department's staff. Moreover, the gain or loss of an agency involves the setting up of a new department or the closure of an existing department.
(ii) There was, therefore, a commercial necessity for the office accommodation of the respondent as a whole to be highly fixable so that the section thereof devoted to any particular department may be increased or diminished as occasion requires.....'
21. The Special Commissioner held that the partition in question constituted 'machinery or plant' within the meaning of s. 279 or s. 280 of the I. T. ACT, 1952 (U. K.). When the matter was dealt with by Pennycuick J., in Chancery Divisions, after observing that the setting in which the business is carried on, and the apparatus used for carrying on a business are not always mutually exclusive, it was stated in the judgment that (p. 688) 'partitions are fixtures specially designed to enable an appropriate and varying number of employees to perform their duties in an appropriate and varying number of section, according to the duties in an appropriate and varying number of sections, according to the state of the company's business at the time', and therefore (P. 688), 'it seems to me to be impossible to deny to fixtures possessing this character the title of apparatus used by the company for carrying on its business. ' These observation will, therefore, indicate that it was because of the peculiar character possessed by the fixtures which were specially designed, that Pennycuick J., took the view that though the partition may be a part of the setting, they were qualified for allowances as The decision of the Court of Appeal (p. 689 of TC) also indicates that the partitioning was held to be plant on the special facts of that case. Ormerod L. J., after observing that there may be many cases when the construction of a building is such that it would not be possible to say that partition between the various parts of the building were anything other than the setting in which the trade was being carried on and that might well apply in a building divided by fixed walls, said (p. 693) :
'But that is not the case here. We have to consider the question on the findings of fact in the case, and it is clear that the movable partitions were so adapted that the arrangements inside the building should be as flexible as possible to meet the changing demands of the trade....... The dividing line between what is 'plant' and what is not is a narrow one, and the facts of their particular case come near to that dividing line. But, in my judgment, in the circumstances of this case-and I think each case does depend largely on its won circumstances-the partitions should be regarded as something more than more setting for the carrying out of the trade; in other words as coming within the definition of 'plant' as contained in section 279.'
22. The following observations of Donovan L. J. may also be quoted (p. 696) :
'The definition given of 'plant' by Lindley L. J,. in Yarmouth v. France  19 QBD 647 clearly embraces them. I would agree, however, that there may be cases, like J. Lyons & Co. Ltd. v. Attorney-General  1 CH 281 , where an asset or some article can be excluded from the definition because it is more a part of the setting than part of the apparatus for carrying on the trade. In the present case, however, the contrary is found. These partitions are required by the nature of the respondent's trade, as the lamps in the case of J. Lyons & Co. Ltd. v. Attorney-General were not.'
23. Person L. J. posing the question as to whether the portioning is part of the premises in which the business is carried on or part of the plant with which the business is carried on, observed, ' either view could have been taken'. The two views were that the so-called partitioning when erected, constitutes the interregnal walls of the building which have the advantage of being movable, but until they are moved will stand firm and solid, m fully performing the functions of interregnal walls and so regarded the partitioning would be part of the premises and not plant; and the other view was that instated of having internal walls in its office building, needs to have and does have, for the special requirements of its business, movable partitioning, by means of which it can, in responds to changing volumes of business in its departments or the cessation of departments or the emergence of new departments, rapidly and cheaply and without much interruption of business later the sub-divisions of its office building. On that view according to Person L. J. the partitioning could undoubtedly be regarded as 'plant'. And then the learned judge observed (p. 696) :
'I think the commissioner have, in effect, m preferred the second view, and it cannot be said that there was no evidence to support it, m or that any error of principle was involved.'
24. The observation from the three judgments in the Court of Appeal and particularly from the judgment of Person L. J., would clearly indicate to be 'plant' on the special facts of the case and cannot be treated as an authority that the partition which is movable and put in the factory premises or building must always be treated as 'plant'.
25. Now when me come to the decision of the Supreme Court in TAj Mahal Hotel's case : 82ITR44(SC) , what is argued before us is that the sanitary fittings in that case were held to be plant and the assessee in present case is on a much stronger ground when the contends that roads without which the factory cannot properly function, must also be treated as a plant. It may be pointed out that in Taj Mahal Hotel's case, the assessee-company which was running a hotel, installed sanitary and pipeline fittings in one of its braces and claimed depreciation allowance under the head 'furniture and fittings. ' The question was whether the sanitary and pipeline fittings installed fell within the definition of 'plant'. The Supreme Court relied on the decision in Jarrold's case  40 TC 681 , observing that sanitary fittings, etc., in a bathroom is one of the essential amenities or conveniences which are normally provided in any good hotel in the present times. The further observations are as follows (p. 48 of 82 ITR) :
'If the partition in Jarrold's case could be treated as having been used for the purpose of the business of the trader, it is incomprehensible how sanitary fittings can be said to have no connection with the business of the hotelier. He can reasonably expect to get more custom and earn larger profit by charging in higher rates for the use of rooms if the bathrooms have sanitary fittings and similar amenities. We are unable to see how the sanitary fitting in the bathroom is a hotel will not be 'plant' within section 10(2) (vi) read with section 10(2) (5) when it is quite clear that the intention of the Legislature was to give it a wide meaning and that is why articles like books and surgical instruments were expressly included in the definition of 'plants.
We are unable to read the decision of the Supreme Court in TAj Mahal Hotel's case : 82ITR44(SC) , as laying down any general proportion; that decision must be restricted to the facts that case. But it is important to point out that the test laid down in Yarmouth v. France  19 QB 647, referred to by Uthwatt J., in Lyons & Co. Ltd. 's case  1 Ch 281 , and relied upon on behalf of the Revenue has not been held to be an incorrect test and all that the Supreme Court has said was that so far as the facts of Taj Mahal Hotel's case was concerned, the decision of the Court of Appeal in Jarrold's case  40 TC 681, was more apposite. It is not possible for us to accept the contention of the learned counsel for the assessee that it must necessarily follow from the decision of TAj Mahal Hotel's case (supra), that the roads within the premises of a factory must be treated as plant.
We shall now deal with the other cases realised upon by Mr. Dasture in which a dry dock, swimming pool, silo and safe deposit value have been held to be 'plant'. We must, however, preface our discussion of these cases with the observation that what is material is not that the particular asset was held to be plant but what is important is the reason for which those assets have been held to be plant.
IN IRC v. Barclay, Curle & Co. Ltd.  76 ITR 62 , the question was as to whether the cost of excavating a specially shaped new basin having direct access to the Clyde and a floor below the level of high tide to enable ships to float in and out, m in urged by a company which has built a dry dock for use in its trade of shipbuilders ship repairers and marine engineers wa expenditure, on the provision of plant, within the meaning of s. 279(1) of the I. T. ACt, 1952 (U. K.), and it was held that the dock was 'plant' for the purposes of trade of the company within s. 279(1) of the ACt and that the cost of excavation necessary to make room for it was expenditure on the provision of plant and according such expenditure qualified for an initial allowance as referred to in s. 279(1) of the ACt. The reason why the structure was held to be a plant, according to Lord Reid, was that 'it fulfills the function of plant in the trader's operations. ' Lord Reid in that case observed as follows (p. 67) :
As the Commissioners observed, building or structure and machinery and plant are not mutually exclusive, and that was recognized in Jarrold's case  40 TC 681 . Undoubtedly this concrete dry dock is a structure but is it also plant? The only reason why a structure should also be plant which has been suggested or which has occurred to me is that if fulfils the function of plant in the trader's operations. And, if that is so, no test has been suggested to distinguish one stricter which fulfils such a function from another. I do not say that every stricter which fulfils the function of plant must be regarded as plant, but I think that one would have to find some good reason for excluding such a structure. And I do not think that mere size is sufficient.'
26. Lord Reid further observed (p. 67) :
'It seems to me that every part of this dry dock plays an essential part in getting large vessels into a portion where work on the outside of the hull can begin and that it is wrong to regard either the concrete or any other part of the dock as a mere setting or part of the premises in which this operation takes place.'
27. It was pointed out that the plant, viz., the dock could not even be made until the necessary excavation has been done.
28. In the same cases, Lord Guest applied the functional test and observed as follows (p. 75) :
'In order to decide whether a particular subject is an 'apparatus' it seems obvious that an inquiry has to be made as to what operation it performs. The functional test is, therefore, essential at any rate as a preliminary. the function which the dry dock performs is that of hydraulic lift taking ships from the water on to dry land, raising them and holding them in such a position that inspection and repairs can conveniently be effected to their bottom and sides. It is unrealistic, in any view, to consider the concrete work in isolation from the rest of the dry dock. It is the level of the bottom of the basin in conjunction with the river level which enables the function do dry docking to the performed by the use of dock gates valves and pumps. To effect this purpose excavation and concrete work were necessary.'
29. Lord Guest further observed that the compression of dry dock with premises like a factory premises in which trade is carried on is not accurate, and said (p. 75) :
'The factory is by itself a building or structure in which trade can be carried on. But the excavation and concrete work is useless for any trade purpose unless used in conjunction with the rest of the equipment. AS Person L. J. (as he then was) said the subject is part of the plant with which the business is carried on as distinct from the premises in which the business is carried on.'
30. Lord Donovan approved the functional test applied by Lindley L. J. in Yarmouth v. France  19 QBD 647, and by Person L. J. in Jarrold v. John Goods & Sons Ltd.  40 TC 681 , with the following observations (p. 82) :
'AT the end of the day I find the functional test propounded by Kindly L. J. and by Lords Person to be as good as any, though as was said in Jarrold v. John Goods & Sons, some plant any perform its function passively and not actively. But in the present case this dry dock, m looked upon as a unit, accommodates ships, separates them from their element and thus expose them for repair; holds them imposition while repairs are effected, m and when this is done returns them to the water. Thus the dry dock is, deposit its size, in the nature of a took of the respondents' trade and, therefore, in my view, 'plants.'
31. The judgment in the Dry Dock case [IRC v. Barclay, Curle & Co. Ltd.  76 ITR 62, thus clearly indicates that dry dock was treated as a tool of the trade with which the business is carried on and since excavation and the concrete work was absolutely necessary for the construction of the dry dock, the expenditure incurred on excavation and concrete lining was held to have attracted the initial allowance under s. 279(1) of the I. T. ACt, 1952 (U. K.).
32. In Cooke H. M. Inspector of Taxes v. Bench Station Caravans Ltd.  49 TC 514 , the assessee was a company and was the operator of a Carvan park at a seaside resort. IN order to attract customers it provided flush lavatories, showers, water, shops laundries, children playground, amusement hall, licensed bars, and heated swimming and paddling pools. Two pools were contacted to a detailed specification commissioned by the company. They were excavated concerted and lined with a material called marblite, and they stood in a substantial area paved with slabs 2 ft. square. They has an estimated life of 25 to 30 years. On grounds of amenity and public health, they were the water. the assessee-company claimed that the whole of the expenditure on the construction of the pools, amounting to 7,000 qualified for capital allowances as expenditure on the provision of plant for the purpose of its trade. The inspector of taxes agreed and allowed expenditure attributable to filtration. Heating and recirculation, plumbing, fitting and electrical installations as expenditure on the provision of the plant but disallowed the cost of terracing, construction of the pools and excavation. On appeal by the company the Special Commissioners accepted the company's appeal and allowed the appeal. In appeal by the Crown, by way of case stated, Megary J. held that the pools were not merely passive but were part of the apparatus used by the company for carrying on its business, and accordingly the Commissioner; s decision was correct. Here against, swimming pools were considered to be part of the apparatus used for the business.,
33. The same is the position in Schofield H. M. Inspector of Taxes v. R,. & H. Hall Ltd.  49 TC 538 , where silos were regarded single units of plant and their external walls were held to be not merely in the nature of a general setting in which a part of the operation was carried on by the assessee-company. In that case, the company carried on the business of importers of grains for sale to millers and to manufactures of animal feeding stuffs. It purchased grains and resold it to large customers and ex-silo to small customers. The grains used to arrive at Belfast in shiploads of up to 20,000 tons. It has formerly been begged by hand, manhandled ashore and loaded by has into the customer's lorries or into coasters, but being obliged to equip itself for bulk unloading owing to the increasing demand for grain for feeding stuffs for batteryfarmed hens and pigs, the company in 1940 built a silo at the dockside., Later, it built another silo. The silos were essentially transit silos. The customers were expected to take delivery within seven days, and an additional charge was made in default. The silos broadly consisted of a large create structure into which were built concrete bins, a small structure (the workhouse) which was in effect the lift shaft, and plant and machinery consisting of gantries, conveyer belts, mobile chutes, etc. The grains was sucked up from the ship into the bins and from there released as required and permitted to descend by gravity, or by gravity assisted by machinery, into customer's lorries. The walls of the bins were either party walls with the next bin or the exterior walls of the silo. It was the ca of the assessee that the solos as a whole qualified for capital allowance as plant used in carrying on its trade of grain importing, while for the Crown it was contended that the silos were part of there setting which the trade was carried on, and were not plant but industrial buildings. The Special Commissioners applied the principles of the Dry Dock case IRC v. Barclay, Cruel & Co. Ltd.  76 ITR 62 , and held thast the silos were plant for the purpose of capital allowances. This decision was uphold by Lorry C.J. It is pointed out that the silo were treated by the learned judges as 'in the nature of a tool in the trade'.
34. In all these cases, therefore, the functional test was applied and assets which were treated as plants were assets with which the business operation was carried on. Same is the case in CIt v. Union Bank of India Lts. : 102ITR270(Bom) , where the question was whether the safe deposit value was an apparatus of fixture employed in carrying on the trade or business and it was held that the safe deposit value in a bank is apparatus or fixture employed in carrying on a trade or business which is not its stock-in-trade and would fall within the meaning of a 'plant'.
35. All these cases turned mainly in the nature of assets and the role they played in the business of the assessee. These cases are, therefore, of no assistance to the assessee in the instant case. In the view which we have taken, the roads within the factory premises cannot be treated as something with which the business of the assessee is carried on or as a tool of the trade,. They can properly be described as a setting in which the business of the assessee is carried on and being an adjunct to the factory buildings, they cannot be treated as plant for the purpose of s. 32 read with s. 43(3) of the I. T. ACt.
36. The questions referred is, therefore, answered by holding that the Tribunal wa not justified in holding that the roads conducted by the assessee-company in the premises of the factory would constitute plant as defined in s. 43(3) and that they must be treated a building for the purpose of s. 32. The assessee to pay costs of the reference.