S.P.Goyal, J.

1. The assessee, M/s. Yamuna Cold Storage, a registered firm, is engaged in the business of cold storage the construction of which wasstarted in December, 1968, and completed in March, 1969. The assessment year in question is 1970-71. The dispute in this reference relates only to the depreciation to be allowed on the building and the cost of thermocole insulation. The ITO allowed 10% depreciation on the building and 15% on the rmocole insulation treating it to be machineay. The AAC during the course of the hearing of the appeal filed by the assessee reduced the depreciation to 5% on both the items treating it to be a godown and as such an ordinary building. Aggrieved thereby, the assessee went in appeal before the Tribunal which restored the order of the ITO holding that the cold storage was a factory building and that the thermocole insulation was covered by the definition of "plant" as denned in Section 43(3) of the I.T. Act. However, on an application by the revenue, the following two questions were referred under Section 256(1) of the Act for the opinion of this court :

"(1) Whether, on the facts and in the circumstances of the case, the Tribunal i