Commissioner of Income Tax vs Stanes Amalgamated Estates Ltd.

R. Jayasimha Babu, J.—The assessee is a company which carries on the business of growing and manufacturing of tea. It had claimed

development allowance u/s 33A of the Income Tax Act for the assessment year 1982-83 at the rate of Rs. 35,000 per hectare, the rate at which

that allowance could be claimed for the assessment year 1982-83. That claim was negatived by the Assessing Officer on the ground that the asses-

see had cleared and planted the estate in the years 1977-78 and 1979-80 and in those years the development allowance was allowable only at the

rate of Rs. 12,500 per hectare.

The assessee having taken up the matter in further appeal to the Tribunal which accepted the assessee''s contention, the Revenue is now before

us questioning the correctness of the Tribunal''s view.

The Tribunal while considering the question before it referred, inter alia, to the decision of the Kerala High Court in the case of Kilkotagiri Tea

and Coffee Estate Ltd. Vs. Commissioner of Income Tax, which interpreted Section 33A as permitting the claim for development allowance in the

assessment year subsequent to the years in which clearing and planting had taken place, at the rate prevailing at the time of the claim. That decision

of the Kerala High Court was subsequently confirmed in appeal by the Supreme Court in Commissioner of Income Tax, Kerala Vs. Kilkotagiri

Tea and Coffee Estate Co. Ltd., .

The apex court in that decision pointed out that development allowance u/s 33A may be given in a subsequent year and that allowance cannot

be limited only to the year in which expenditure was actually incurred or the immediate next year thereafter. The court observed that the very

definition of the actual cost of planting indicates that a span of four years has to be taken into account for the purpose of computation of

development allowance. The development allowance u/s 33A was to be granted in two stages. The first stage under Clause (a) provides for the

computation in the first instance and will be limited to that portion of the actual cost of planting which was incurred during the previous year in

which the land was prepared for planting or replanting, as the case may be. The development allowance under Clause (b) has to be given by

computing the actual cost of planting once again as that clause provides that development allowance shall again be computed with reference to the

actual cost of planting. The court further went on to hold that there is nothing in Section 33A to suggest that development allowance for

expenditure incurred in respect of the first two years must be calculated and claimed at the very first stage, that is, at the stage of the second year

of assessment after planting of tea bushes.

The claim for allowance is to be in accordance with the rate at which such claim can properly be made in the year in which the claim was made.

The assessee had the option to defer making the claim which it obviously had exercised. Before it made the actual claim the amount of the

development allowance was enhanced. The assessee is entitled to claim the benefit of the enhanced amount as it is well settled that the law

applicable to any assessment is the law that prevails as on the first of April of the relevant assessment year. The fact that some of the activities in

relation to which the claim was made had been undertaken in the earlier years does not come in the way of such claim being made. It is the duty of

the Assessing Officer to apply the law as it stood in the year of assessment and it is not open to the Revenue to deem a repealed figure for an

earlier assessment year as deeming to remain in the statute book in respect of the assessments in which the activity in relation to which the claim has

been made had been undertaken in the earlier years.

The Tribunal was, therefore, correct in the view it took and the question referred to us : ""Whether, on the facts and in the circumstances of the

case, the Tribunal is right in holding that the assessee is entitled for the claim for deduction u/s 33A(7), proviso (ii), of the Act as amended with

effect from April 1, 1982, at the rate of Rs. 35,000 per hectare ?"" is answered in favour of the assessee and against the Revenue.