T.D. Sugla J.
1. This is a departmental reference relating to the assessment of the assessee, an individual, for the assessment year 1963-64. The Income Tax Appellate Tribunal has referred to this court the following question of law u/s 256(1) of the Income Tax, 1961 :
"Whether, on the facts and in the circumstances of the case, the assessee''s claim for allowance of development rebate on additions to the plant and machinery made during the previous year in the business styled as Amar Tara Industries and Indian Cork Mills can be rejected on the ground that the businesses which were the proprietary concerns of the assessee were, with effect from March 1, 1963, within the previous year, converted into partnership concerns of which the assessee was one of the partners?"
2. The assessee was carrying on business under the name and style of Indian Cork Mills, Textile Overseas Corporation and Amar Tara Industries as sole proprietress. The previous year ended on March 31, 1963. Some time during the previous year, i.e., on March 1, 1963, all the three of her proprietary businesses were converted into partnership businesses. The partnership was constituted of herself and her son, Arun Kumar. It is common ground that there were additions to plant and machinery made during the previous year in the businesses styled Amar Tara Industries and Indian Cork Mills. The assessee claimed development rebate on the value of those additions u/s 33. The claim was disallowed by the Income Tax Officer on the ground that the two businesses were concerted into partnership concerns with effect from March 1, 1963 of which she, along with her son, was a partner. The Appellate Assistant Commissioner, on the other hand, accepted the assessee''s claim that, when the two businesses were converted as partnership concerns, there was no sale or transfer of the business and as such the assessee was entitled to development rebate. The Tribunal confirmed the order of the Appellate Assistant Commissioner.
3. In order to appreciate the rival contentions, it is desirable to refer to the provisions of sections 33(1) and 34(3)(b) which are relevant for the purpose of considering whether or not the assessee was entitled to development rebate and whether, if she was so entitled, the development rebate could have been withdrawn u/s 34(3)(b). The said sections read as under :
"33(1)(a). In respect of a new ship or new machinery or plant (other than office appliances or road transport vehicles) which is owned by the assessee and is wholly used for the purposes of the business carried on by him, there shall, in accordance with and subject to the provisions of this section and of section 34, be allowed a deduction, in respect of the previous year, a sum by way of development rebate as specified in clause (b)..."
"34 (3)(b). If any ship, machinery or plant is sold or otherwise transferred by the assessee to any person at any time before the expiry of eight years from the end of the previous year in which it was acquired or installed, any allowance made u/s 33 or under the corresponding provisions of the Indian Income Tax Act, 1922 (11 of 1922), in respect of that ship, machinery or plant shall be deemed to have been wrongly made for the purposes of this Act, and the provisions of sub-section (5) of section 155 shall apply accordingly :..."
4. We will examine the provisions of section 34(3)(b) first. This clause evidently applies only to a case where any ship, machinery or plant is sold or otherwise transferred by the assessee to any person at any time before the expiry of eight years from the end of the previous year in which it was acquired or installed. In the present case, the plant and machinery, admittedly, became the property of the partnership firms during the previous year and not after the end of the previous year. This condition is, thus, not satisfied. The second condition for the application of section 34(3)(b) is that any allowance was made, i.e., allowed to the assessee u/s 33 in respect of such ship, machinery or plant. No development rebate was, admittedly allowed u/s 33 on the value of the additions in any preceding assessment year. In the circumstances, the provisions of section 34(3)(b) cannot be said to be attracted in this case.
5. The question of law framed does not bring out the real controversy between the parties. In our judgment, the question of law should have been whether, on the facts and in the circumstances of the case, the assessee was entitled to development rebate u/s 33 on the additions to the plant and machinery made during the previous year in the businesses styled Amar Tara Industries and Indian Cork Mills even though during the previous year, i.e., on March 1, 1963, her aforesaid two proprietary businesses became partnership concerns. We reframe the question accordingly.
6. For this purpose, it is necessary to examine the provisions of section 33(1), which we have reproduced earlier. To our mind, for the application of section 33, there are three conditions which need to be satisfied. They are : (i) that the ship, machinery or plant must be owned by the assessee; (ii) is wholly used for the purposes of the business; and (iii) the business must be carried on by the assessee. In the absence of any dispute about the facts that the machinery or plant was owned by the assessee, that it was wholly used for her business and that the business was carried on by her, this sub-section is obviously attracted. There is no condition for allowance of development rebate u/s 33 like the one for allowance of depreciation u/s 32 as is found in section 34(2)(ii), since deleted. That provision specifically provided that nothing in clause (i) or clause (ii) or clause (iiia) or clause (iv) or clause (v) or clause (vi) of sub-section (1) of section 32 shall be deemed to authorise the allowance for any previous year of any sum in respect of any building, machinery, plant or furniture sold, discarded, demolished or destroyed in that year. Dr. Balasubramaniam has not been able to point out to us any provision similar to the above with regard to development rebate. Consequently, the result must be that the assessee is entitled to development rebate u/s 33(1).
7. In the above view of the matter, we answer the reframed question in the affirmative and in favour of the assessee.
8. No order as to costs.
