TMI Blog1993 (2) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... ilding is exclusively used for the purpose of business of the company in the exhibition of cinema and hence exempt under section 40(3) of the Finance Act, 1983. As these appeals were heard together they are, therefore, disposed of by this consolidated order for the sake of convenience. 2. At the outset, it would be better to mention here the provisions of section 40(3)(vi) of the Finance Act, 1983 which are as under : " 40(3)(vi). Building or land appurtenant thereto, other than building or part thereof used by the assessee as factory, godown, warehouse, hotel or office for the purposes of its business or as residential accommodation for its employees or as a hospital, creche, school, canteen, library ; recreational centres, shelter, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also relied on a decision of the Bangalore Bench of the Tribunal in the case of Prakash Talkies (P.) Ltd. v. First WTO [1989] 28 ITD 213 wherein a Cinema theatre owned by the assessee-company was held to be exempt from wealth-tax on the ground that it is a plant and machinery as defined under section 40(3)(vi) of the Finance Act, 1983. In the instant case also, similar claim has been put forth by the assessee-company. Dr. Butani relied on a judgment of the Bombay High Court in the case of K. Subramanian v. Seimen's India Ltd. [1983] 36 CTR (Bom.) 197 for the proposition that where there is a conflict between different High Courts, the judgment of the jurisdictional High Court should be followed. However, if there is a conflict between the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c words ; (ii) the subject of enumeration constitute a class or category ; and (iii) that class or category is not exhausted by the enumeration ; (iv) the general terms follow the enumeration ; and (v) there is no indication of a different legislative intent. In the case of Prakash Talkies (P.) Ltd. at page 219, the Tribunal found that the above conditions were satisfied in that case to attract this rule so that a cinema theatre was intended to be included in the category of buildings exempt from tax even from the very inception. Dr. Butani also relied on the Calcutta High Court judgment in the case of CWT v. India Exchange Traders'Association [1992] 197 ITR 356. He has also relied on the Allahabad High Court judgment in the case of S.K. Tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40. She has also brought to our notice the decision of the Madras Bench ' C ' of the Tribunal in the case of Varadaraja Theatres (P.) Ltd. v. WTO [1989] 29 ITD 29 wherein it has been held that the theatre building in question which was a capital asset of the assessee and which is utilised for the purpose of carrying on its business, would fall within the exclusion clause of section 40(3)(vi) of the Finance Act, 1988. She submitted that the Finance Minister's speech reproduced in Sole Trustee, Loka Shikshana Trust at page 253 has no force of law. She has also submitted that the decision of Ram Krishna Paul v. State of West Bengal AIR 1972 SC 863 on which reliance was placed by the learned counsel for the assessee is not applicable. The words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urtenant to such building or part :" The aforesaid amendment is reproduced in 171 ITR (Statute) page 89. It is also submitted by the learned departmental representative that whenever the date of coming into effect is given it is prospective and not retrospective. 7. Smt. Samant extended her arguments contending that there is a great controversy regarding the cinema house to treat it as ' plant '. According to her, the pictures can be exhibited and enjoyed even on the roads and for such purposes of enjoyment a particular type of building or a house is not required. She has cited the example of mobile theatre. According to her, the valuation was correctly made for the purposes of wealth-tax and there is no scope to reduce the said valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. She has also tried to point out certain observations from the judgment of the Supreme Court in the case of State of Madhya Pradesh v. Rameshwar Rathod AIR 1990 SC 1849 pertaining to the Essential Commodities Act. She urged that the amendment enacted is substantive amendment and therefore, there is no scope to explain or to make it applicable with retrospective effect. She has also pointed out certain commentary from page 46 of Palkhivala's book on Income-tax Law. Her contention is that a tent cannot be treated as a plant though mobile projector can be treated as such. 9. In reply, Dr. Butani contended that the amendment is enacted to clarify the position by way of substitution. According to him, the amendment is illustrative but not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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