Commissioner of Income Tax, Madras vs P. Veeraswami Nainar Bus owner and the mill owner Ginjee and Others

S. Ramachandra Iyer,C.J.

This reference made at the instance of the revenue, raises the following questions:

Whether the assessee is entitled to the allowance of development rebate under the provisions of S. 10(2)(vi-b) of the Income Tax Act in respect

of a new bus and a new lorry installed after 31-12-1957, even though the necessary reserve, in accordance with S. 10(2)(vi-b), as it stood at the

relevant time, had not been made?

Whether the direction given to the Income Tax Officer at this stage that the said allowance may be granted to the assessee, on production of the

books before the Income Tax Officer, is justified?

The facts giving rise to this reference are these. The assessee (a Hindu undivided family) had business in cement and fertilisers. The family had also

in business in bus transport and lorry service. Besides, it owned two rice mills. For the assessment year 1959-60, the relevant accounting period

being the previous financial year, the assessee submitted a return showing a loss of Rs. 20441 in respect of the business. That loss was ascertained,

after deducting, inter alia, a development rebate at 25 per cent on a new lorry and a new bus which were purchased subsequent to 31-12-1957,

but during the year of account. The development rebate claimed was Rupees 18965. But the assessee had not in his accounts, debited 75 per cent

of that amount to the profit and loss account. Consequently, that part of the rebate claimed had not also been credited to the reserve account, as

required by S. 10(2)(vi-b). The Income Tax Officer refused to allow the development rebate on the ground that neither the bus nor the lorry could

be regarded as a plant or machinery within the meaning of that provision. This was obviously incorrect. The Appellate Assistant Commissioner,

whom the assessee approached by way of appeal, sustained the order of the Income Tax officer, in regard to the development rebate on another

ground. He held that as the conditions imposed by the proviso to the provision referred to above had not been compiled with by the assessee,

inasmuch as he had not set apart 75 per cent of the development rebate to the reserve account, he would not be entitled to the allowance in

computing the profits. The assessee was, however, successful in regard to this matter on further appeal to the Tribunal. Referring to the omission of

the assessee to make a reserve, as required by the proviso to S. 10(2)(vi-b), the Tribunal stated:

All the same, by virtue of the highly theoretical nature of the statutory requirement, in our opinion, it will be enough if the assessee carries it out even

later. After all, what is required by the statute is that there must be book entries in support as a kind of only a follow up of the assessee''s claim.

The Income Tax officer is directed to compute the development rebate on the new lorry MDF 1636 and the new bus MDF 1219 on the assessee

producing his books before him containing the reserve entries.

We are unable to accept this view. Section 10 brings to charge the profits of the business of an assessee earned during the year of account. Sub-

section (2) enables the assessee to make certain deductions, or to obtain certain allowances in the computation of profits. Cl. (Vi-b) to hat section,

which was originally introduced by the Finance Act of 1955 was re-introduced by S. 7 of the Finance Act of 1958 in the present form. That clause

provides that in respect of any new machinery or plant installed after the 31st day of march 1954, and which is wholly used for the purposes of the

business carried on by the assessee, a sum equivalent to 25 per cent of the actual cost of such machinery or plant will be allowed by way of

development rebate. The granting of this allowance is subject to the two conditions prescribed in the proviso to explanation 2 to the section being

satisfied. They are (1) that the prescribed particulars for the purpose of granting depreciation allowance should be furnished in regard to the plant

or machinery; and (2) in the case of machinery or plant installed after 31-12-1957, that the assessee should have set apart 75 per cent of the

amount allowable as development rebate to a reserve account, by debiting the same to the profit and loss account of the year of account and

crediting it to the reserve account. The proviso further states that this reserve fund can be utilised by him during a period of ten years next following

for the purposes of the business of the undertaking and that it cannot be used for distribution by way of dividends or profits, or for remittance

outside India. There are exceptions to his rule with which we are not concerned. The proviso further makes a provision for the case of a sale of the

plant or machinery within the period of ten years following.

(2) It will be apparent from the terms of the proviso that the object of the Legislature in allowing a development rebate is a real one, that is, to

facilitate the improvement of the assessee''s business form out of the reserve fund. The entries in the account books required by the proviso are not

an idle formality. The assessee being obliged to credit the reserve fund for a specific purpose, he cannot draw upon the same for purposes other

than those of the business, and if the assessee were a company for exemption that amount could not be distributed by way of dividend. It is also

clear from the terms of the proviso that the reserve should be made at the time of making up the profit and loss account. The Tribunal was clearly

in error when it held that account by making the reserve at a later period of time. Any account maintained by a business should reflect its financial

transactions correctly. If at the time of the closing of the accounts for a year, a particular appropriation had not been made, but the moneys had

been spent otherwise, it would indeed be futile to direct the assessee to re-adjust the account. For then it will not be a true account.

The Tribunal has stated that the requirement as to creation of a reserve fund is of a highly theoretical nature, which need not be complied with to

the letter of the statute. This view is opposed to all principles of statutory construction. As we pointed out, S. 10(2)(vi-b) provides for exemption

from taxation. The proviso to that section states that no allowance under that clause shall be made unless the conditions contained in sub-clauses

(a) and (b) thereto have been complied with. That means, that the assessee will not be entitled to allowance unless he had complied with the

conditions referred to therein. Consequently it will not be open to the tribunal to treat the requirements of the proviso as not substantial, and

proceed to grant the exemption even in cases where the conditions had not been complied with. While it is true that in the interpretation of a taxing

enactment, the intention of the legislature as in the case of any other statute, has to be ascertained, it is equally a well-settled principle that it would

not be competent for the court to assume any intention or any governing purpose in the Act except what the plain terms of the statute itself say.

Another words, it will not be competent for a court, in construing a taxing enactment, to presume in favour of an exemption from the tax, apart

form what the plain words of the statute provide. In Cape Brandy Syndicate v. Inland Revenue Commissioners, 1921 1 KB 64 , Rowlatt J. Said:

......................in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is not equity about a tax.

Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.

This rule in our opinion, is as much applicable to in the construction of a charging section as to the construction of a provision as to exemption from

tax, albeit a court not unoften gives a liberal interpretation to a provision intended by way of exemption from tax. In the words of Lord Reid in

Inland Revenue Commissioners v. Saunders, 1958 AC 285:

It is sometimes said that we should apply the spirit and not the letter of the law so as to being in cases which, though not within the letter of the law,

are within the mischief at which the law is aimed. But it has long been recognised that our courts cannot so apply taxing Acts.

Where, therefore, conditions are expressly imposed to entitle an assessee to an exemption, deduction or allowance, these conditions cannot be

ignored on any theory of beneficial interpretation. It will follow that in order that an assessee can claim an allowance by way of development rebate

under S. 10(2)(vi-b) should comply with the conditions contained in the proviso thereto as otherwise under the express terms of that proviso he

would not be entitled to the allowance. Where he fails to satisfy the conditions requisite for obtaining the allowance, it will not be for the court to

embark upon what the general object of the exemption was, and whether the conditions imposed were of a theoretical or technical nature, which in

the interests of justice, should be dispensed with. We are, therefore, of the opinion that the assessee not having set apart in his accounts 75 per

cent of the amount climbable as development rebate, could not claim the benefit of S. 10(2)(vi-b) of the Act.

We are also of opinion that it will not be open to the Tribunal to give a direction to the assessee who had not made the necessary book before

the Income Tax officer, that he should be allowed to re-write them by making the requisite entries.

We, therefore, answer the two questions referred to us in the negative and against the assessee. The assessee will pay the costs of the

department. Counsel''s fee Rs. 250.

Reference answered in the negative.