JUDGMENT

Pattanaik, J.-These appeals are directed against the order of the Himachal Pradesh Administrative Tribunal, disposing of O.A. No. 276/87 with O.A. No. 226 of 1989. The applicants before the tribunal were Junior Engineers, working in Himachal Pradesh State Electricity Board. The dispute centres round the question as to whether it is permissible for the employer to frame Regulations, providing a separate quota of promotional avenues for the less qualified junior Engineers in preference to the claim of the qualified diploma holder Junior Engineers. The feeder category for promotion to the post of Assistant Engineer is Junior Engineer. In the cadre of Junior Engineer, 95% of the vacancies are filled up by direct recruitment of persons, who are diploma holders and only 5% is by promotion from amongst the lower category, who are usually matriculates with I.T.I. Certificate. So far as the promotion to the post of Assistant Engineers is concerned, the Board has been amending the promotion Regulation from time to time, providing for a ratio between the direct recruits and promotees and again, further providing a quota within the promotion quota, to be filled up by Junior Engineers (qualified) and Junior Engineers (unqualified). The original Regulation of the year 1973 has been amended from time to time in 1979, 1983 and 1986 and under the 1986 Regulations, 46% of the posts in the cadre of Assistant Engineer was available in promotion quota and out of the same, 28% were to be filled up by Junior Engineers (qualified), 8% by Junior Engineers (unqualified), 6% from amongst those who have passed Section A and B examination of the Institute of Engineers (service) and 4% from Draftsman. It may thus be noticed that from the inception of the service, a specified percentage of quota has been made available in the promotional cadre of Assistant Engineer for the unqualified Junior Engineers notwithstanding the fact that Junior Engineers form one cadre. In December, 1987, the direct recruits qualified Junior Engineers filed application before the Himachal Pradesh Administrative Tribunal, praying for quashing of the quota rule vis-à-vis them and the unqualified Junior Engineers, essentially on the ground that there has been a total integration of both categories of Junior Engineers and they discharge identical functions, their duties being interchangeable and inter-transferable and from the fused cadre, it is not permissible to provide a different quota for promotion to the higher post and the said provision must be held to be arbitrary and irrational and as such is liable to be struck down. The Board took a decision to prepare separate seniority list of the Junior Engineers, which is the feeder category for promotion to the post of Assistant Engineer. The separate seniority list in the cadre of Junior Engineer, one for diploma holder Junior Engineers and another for unqualified Junior Engineers was prepared in November, 1989. As by preparation of such seniority list, the original application filed by the direct recruit qualified Junior Engineers before the tribunal became infructuous, they approached this Court in Special Leave Petition (Appeals) holding that the assessee is entitled to investment allowance on the generating station building considering it as plaint ?"

2. It is not in dispute that the first two questions must be answered in the affirmative and in favour of the assessee having regard in the judgments of this Court in Commissioner of Income Tax, Bihar v. Bokaro Steel Limited, Bokaro1 and Commissioner of Income Tax v. Alcock Ashdown & Co. Ltd.2 respectively :

3. The issue to be decided relates to the third question.

4. It was the case of the assessee that it was entitled to investment allowance as applicable to a plaint in respect of its power generating station building. In a note filed before the Commissioner (Appeals) it stated that it had included for the purpose the value of its Potential Transformer Foundation Cable Duct System, Outdoor Yard Structures and Tail Race Channel. It explained that the process of generation started from letting in water from the reservoir into the penstocks and ducts which were the water conductor system into the turbines. Once electricity had been produced by generation, it had to be conducted as it was not possible to store the same, and the process of generation continued until the electricity was led to the transmission towers. The water that was used for rotation of the turbines had to be removed and this was done through the Tail Race Channel for stepping up the electricity, transformers were used in the Outdoor Yard. The conduction of the electricity was through conductors held in ducts, called the Cable Duct System, which were specifically designed for the purpose. The case of the assessee, therefore, was that all these were parts of the special engineering works that were an essential part of a generating plant and, therefore, it was entitled to have the same treated as a plant for the purposes of investment allowance. The Commissioner accepted the correctness of the assessee s case. He held that it was clear that the generating station buildings had to be treated as a plant for the purpose of investment allowance. These buildings could not be separated from the machinery and the machinery could not be worked without such special construction. He therefore, allowed investment allowance on the generating station building as claimed. The Tribunal affirmed this finding, as indeed did the High Court.

5. We therefore, have before us a finding of fact recorded by the fact finding authority that the generating station building is a integral part of the assessee s generating system.

6. Our attention has been drawn by learned Counsel for the Revenue to the judgment of this Court in Commissioner of Income Tax v. Anand Theatres3. He submits that, in that judgment, this Court has held that, except in exceptional cases, the building in which the plant in situated must be distinguished from the plant and that, therefore, the assessee s generating station building was not to be treated as a plant for the purposes of investment allowances.

7. It is difficult to read the judgment in the case of Anand Theatres so broadly. The question before the court was whether a building that was used as a hotel or a cinema theatre could be given depreciation on the basis that it was a "plant" and it was in relation to that question that the Court considered a host of authorities of this country and England and came to the conclusion that a building which was used as a hotel or a cinema theatre could not be given depreciation on the basis that it was a plant. We must add that the Court said, "To differentiate a building for grant of additional depreciation by holding it to be a plant in one case where a building is specially designed and constructed with some special features to attract the customers and the building not so constructed out, used for the same pur pose, namely, as a hotel or theatre would be unreasonable." This observation is in our view, limited to buildings that are used for the purposes of hotels or cinema theatres and will not always apply otherwise. The question, basically, is a question of fact and where it is found as a fact that a building has been so planned and constructed as to serve an assessee s special technical requirements, it will qualify to be treated as a plant for the purposes of investment allowance.

8. In the instant case, there is a finding by the fact finding authority that the assessee s generating station building is so constructed as to be an integral part of its generating system. It must therefore, be held that it is a "plant" and entitled to investment allowance accordingly. The third question is answered in the affirmative and in favour of the assessee.

9. The civil appeal is dismissed.

10. No order as to costs.

Appeal dismissed.

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