FIRST LEASING CO. OF INDIA LTD. vs COMMISSIONER OF Income Tax (No. 2)

R. JAYASIMHA BABU J.

The two questions referred to us at the instance of the assessee arise out of the order of the Tribunal for the assessment years 1981-82 and 1982-83 on the assessee''s appeals.

The first question is as ''to whether the Tribunal was right in law in holding that the amount of Rs. 6,616 for the assessment year 1981-82 and Rs. 10,317 for the assessment year 1982-83 are includible in the salary of the chief executive of the assessee-company as perquisites for the purpose of disallowance u/s 40A(5) of the Income Tax Act.

A similar question was considered by this court in the assessee''s own case for a different assessment year in T. C. Nos. 526 and 527 of 1987 ( FIRST LEASING COMPANY OF INDIA LTD. Vs. COMMISSIONER OF INCOME TAX (NO. 1), ) and the question was answered against the assessee and in favour of the revenue . The Supreme Court in the case of Commissioner of Income Tax, Bombay, etc. Vs. M/s. Mafatlal Gangabhai and Co. (P) Ltd., , held that the cash payments made by an employer to the employee do not amount to perquisites.

We answer the first question referred to us against the assessee and in favour of the revenue (?).

The second question is as to whether the Tribunal was right in law in disallowing the assessee''s claim for 100 per cent. depreciation allowance under the first proviso to section 32(l)(ii) of the Income Tax Act, 1961, and in respect of the bottles leased out by the assessee during the previous years relevant to the assessment years 1981-82 and 1982-83.

The assessee is a company which is carrying on the business of leasing out assets. It had purchased bottles worth Rs. 44,80,245 in the accounting year relevant to the assessment year 1981-82 and claimed the cost of the bottles as deduction by way of 100 per cent. depreciation under the first proviso to section 32(l)(ii) of the Income Tax Act on the ground that each bottle constitutes a plant and that the cost of each bottle is less than Rs. 750. The assessee claimed to be entitled to deduction in full of the entire cost of the bottle. The bottles so purchased by the assessee had been leased in bulk to Spencer and Co. to be used as containers for soft drinks and beverages manufactured by the company. In the accounting year relevant to the assessment year 1982-83, a similar claim was made for bottles of the value of Rs. 7,29,218. The Income Tax Officer rejected the claim on the ground that bottles did not constitute plant and that the assessee had purchased the bottles in bulk arid leased the bottles in bulk and the value of such bulk purchases was much more than Rs. 750. On further appeal, the Tribunal held that the bottles did constitute "plant" on which normal depreciation is allowable but that benefit of the proviso to section 32(l)(ii) cannot be extended to bottles as bottles are normally used by the manufacturers or lessors in bulk and not individually.

The only question is as to whether individual bottles can be regarded as plant" for the purpose of the first proviso to section 32(l)(ii) of the Act. The proviso reads as under :

"Provided that where the actual cost of any machinery or plant does not exceed seven hundred and fifty rupees, the actual cost thereof shall be allowed as a deduction in respect of the previous year in which such machinery or plant is first put to use by the assessee for the purposes of his business or profession."

The words used in the proviso are : "any machinery or plant". One of the meanings of the word "any" as given in Webster''s Dictionary is "even one, least amount or number of". The literal meaning of the first proviso to section 32(1) of the Act clearly is to the effect that even one plant or machinery will qualify for 100 per cent. depreciation if the cost thereof does not exceed Rs. 750. There is no requirement in the proviso that where a machinery or plant is obtained in bulk the value of the bulk should be the basis for computing the depreciation and not the value of an individual unit each one of which is capable of being regarded as plant and machinery. There is nothing in the proviso or in any other part of the section, which would indicate that the benefit of the proviso would be lost to the assessee who chooses to buy a large number of such units of plant or machinery, the actual cost of which as a bulk is in excess of Rs. 750. If it is possible to identify the item which is claimed by the assessee as machinery or plant, and the unit so identified is capable of standing by itself without having to be put together and being integrated with other units before it can become productive even in a minimal sense of being functional, then that plant would qualify for depreciation notwithstanding the fact that the assessee by the very nature of its business uses a large number of such plants. The fact that such plants are used in the business would not have the effect of rendering the use of individual units as a collective exercise and limit the benefit of depreciation only to the value of the collection of the units in bulk.

The revenue ''s case is not that bottles are not plant or that they do not have a degree of durability or that they are perishable in nature or that they are consumables. That they are capable of being re-cycled and being used as bottles if due care is shown by all those who handle the bottles and that they are capable of being used over a period of time which can run into years is not disputed. By the use of such bottles the assessee thus derived a benefit of enduring nature. The revenue has rightly accepted the Tribunal''s finding that bottles do constitute plant.

Bottles by their very nature are required to be used individually, each bottle is used separately for the purposes of consumption even though the bottling plant may be capable of filling a large number of bottles simultaneously. What is ultimately marketed is the contents of each bottle though the wholesaler may buy a large number of such bottles. Each bottle is an independent unit and is not dependent for its user on the availability of other bottles whether empty or filled. In the event of any damage it is the bottle which has suffered the damage that has to be discarded, and not all the bottles bought along with particular bottle. The use of one bottle is not interconnected with the use of the other bottles.

Counsel for the revenue , however, contended that the manufacturers or lessors do not buy single bottles but would always buy or lease bottles in bulk ; that bottling operations are always so designed as to require the use of a large number of bottles, and therefore each bottle should not be considered separately. We do not see any foundation for such a view within the four corners of the proviso to section 32(1)(ii) of the Act. The benefit of the proviso is not confined only to units in bulk where the cost of each unit is less than Rs. 750. The proviso would be rendered futile if all similar units of plant, the individual value of which is Rs. 750 are to be grouped together and taken as one single unit for the purpose of calculating depreciation. The proviso does not refer to the number of units but refers to the value of the individual unit and once it is found that the value of the individual unit which could be regarded as a plant, is below Rs. 750 it would qualify for 100 per cent. depreciation as provided in the proviso.

The task of determining the circumstances in which the proviso is applicable is thus quite simple. One has to first identify the plant or machinery. If the asset claimed by the assessee as plant and machinery is found to be such, the only question to be answered thereafter is as to the value thereof. If the value is below Rs. 750 the proviso will apply. There is no need or occasion for raising a further question as to how many numbers of such units were bought by the assessee at a time or in the course of the year or how many such units are normally used by the assessee for his business, or how many such units are normally regarded as the tradable bulk by the manufacturers of such units. The functional test to the extent relevant is only for the purpose of ascertaining the usability of that unit as a plant or machinery by itself without being dependent on other similar units for making it functional.

It is not the policy of the law to introduce complexity even when matters can be dealt with in a simple and straightforward manner by giving full effect to the words used in the statutory provision, unless there are compelling reasons evident from the context in which the provision occurs or for the policy of the enactment which is meant to be effectuated by the relevant provision. Each unit of plant and each item of machinery if found to be a depreciable asset is to be allowed depreciation at the appropriate rate depending upon the nature of the asset and the rate of depreciation that is allowed in respect of such asset.

Learned counsel for the revenue relied in support of her submissions on the decision of this court in the case of CIT v. Tantil Murasii Nblishers (P.) Ltd. (1986) 55 CTR 447. The question before the court in that case was as to whether the entire sum that has been paid by the assessee, a publisher of newspapers for purchase of types used for printing the paper should be allowed as a deduction. That types were plant was not disputed by the revenue . The assessee claimed that the requirements of the types per day should be taken as the basis for determining the cost of types, while the revenue contended that it should be the expenditure incurred on types for the whole year. The court after holding that the provisions of the Act have to be interpreted in a manner which will apply uniformly to all the assessees and the extent of depreciation allowable should not depend upon the periodicity of the purchase made by the particular assessee, held that neither the cost of a day''s requirement nor the cost of a year''s requirement of types is to be taken as the basis for computing the cost of types for the purpose of calculating depreciation. The court did not decide as to the manner in which the cost of the types used by the assessees should be determined. The question here is not as to the periodicity of the purchase of the depreciable assets. Learned counsel for the revenue also placed reliance on the decision of this court in the case of Mysore Dasaprakash Vs. Commissioner of Income Tax, . In that case the claim under the proviso to section 32(l)(ii) in respect of components of the electrical installation installed in a hotel which had several lodging rooms was considered and that claim was negatived on the ground that the electrical installation in the building was an integrated unit, and could not be separated into separate installations in respect of each room in a hotel. Here each bottle is a unit and all bottles together do not constitute a single integrated unit.

The decision of the Andhra Pradesh High Court in the case of Commissioner of Income Tax Vs. Sri Krishna Bottlers Pvt. Ltd., , wherein Jagarmadha Rao J., as he then was, after elaborate consideration of the facts held that bottles did constitute plant for the purpose of section 32(l)(ii) of the Income Tax Act was relied on by counsel for the assessee. A SLP against that judgment was rejected by the Supreme Court (vide (1995) 211 ITR 6). In the case of Commissioner of Income Tax Vs. Margadarsi Chit Fund (P.) Ltd., another Bench of the Andhra Pradesh High Court held that the bottles purchased by the lessor for the purpose of leasing out the same to others was to be allowed depreciation under the proviso to section 32(l)(ii) of the Income Tax Act, as the value of each bottle was less than Rs. 750. It was also held by that court that collective purchase did not render a claim for depreciation in respect of individual items thereof not allowable. The Delhi High Court in the case of Goyal Gases Pvt. Ltd. Vs. Commissioner of Income Tax, , has also taken a similar view that individual units are to be allowed depreciation under the proviso to section 32(l)(ii) of the Act and that bottles would qualify for such depreciation.

The Calcutta High Court in the case of Commissioner of Income Tax Vs. Tea Estates India Ltd., , held that electrical installations installed in labour quarters are to be allowed depreciation under the proviso to section 32(l)(ii) of the Income Tax Act, as each labour quarters was a distinct unit and the electrical installations installed in each unit was separate from the installation in other units. The court observed that one test that can be applied for the applicability of the proviso is whether if a particular plant is purchased over and over again according to the requirement of the expanding business, the benefit of the proviso can be denied to such plant by reason merely of its multiplicity. The court answered that question in the negative on the ground that divisibility of one unit from the other is the decisive test.

In the light of the discussion in the foregoing paragraphs, we answer the question referred to us regarding the disallowance of the assessee''s claim for 100 per cent. depreciation on the bottles leased out by the assessee, in favour of the assessee and against the revenue . The assessee shall be entitled to costs in the sum of Rs. 1,000.