TMI Blog1992 (4) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... onary by-pass surgery has directly improved the competence of the assessee and his earning capacity. It was pointed out that during the assessment year 1982-83 the gross receipt of the assessee was to the tune of Rs. 3.55 lacs and after by-pass surgery the gross receipts for the assessment years 1983-84 to 1985-86 amounted to Rs. 5.1 lacs, Rs. 10.8 lacs and Rs. 12.15 lacs respectively. During the assessmentyear 1986-87 gross receipts were expectedto be over Rs. 20 lacs.The Income-tax Officer was, however, of the view that human body cannot be treated as plant and that expenditure incurred on coronary by-pass surgery was not an allowable deduction under section 3 1. 3. Before the Income-tax Officer it was contended on behalf of the assessee, in the alternative, that the claim for deduction of the expenditure incurred on coronary by-pass surgery was allowable under section 37(1). The Income-tax Officer was of the view that the expenditure was not incurred wholly and exclusively for the purpose of business or profession and that the expenditure being personal in nature was not allowable under section 37. 4. The matter was carried in appeal before the CIT (Appeals), who agreed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this contention reliance was placed on the decision of the Bombay High Court in Mehboob Productions (P.) Ltd. v. CIT [1977] 106 ITR 758. In support of the contention that the expenditure helped him in earning his professional income and, therefore, the expenditure was expended wholly and exclusively for the purpose of his profession, reliance has been placed on the decision of the Bombay High Court in Tata Sons Ltd. v. CIT [1950] 18 ITR 460. According to Shri Shanti Bhushan, if the expenditure had incidentally benefited him in his individual capacity it would still be an expenditure incurred wholly and exclusively for the purpose of his profession and drew support for this proposition from the decision of the Madras High Court in the case of Waterfall Estates Ltd. v. CIT [1981] 131 ITR 223. It was next submitted that had he not incurred the expenditure on by-pass surgery his professional career would have come to an end. The expenditure incurred for preventing extinction of the profession was wholly and exclusively laid out for the purpose of business. In support of this contention he placed reliance on the decision of the Supreme Court in the case of CIT v. Royal Calcutta Turf Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why in the case of a vocalist expenditure on repairs of his vocal cord should not be allowed, when similar expenditure incurred on repairs of an instrument is allowable in the case of a professional instrumentalist. 9. Reliance has been placed on the decision of the Gujarat High Court in the case of CIT v. Elecon Engg. Co. Ltd. [1974] 96 ITR 672 which has been affirmed by the Supreme Court in CIT v. Elecon Engg. Co. Ltd [1987] 166 ITR 66. Reliance has also been placed on the decision of the Supreme Court in Scientific Engg. House (P.) Ltd. v. CIT [1986] 157 ITR 86. 10. According to Shri Shanti Bhushan the two decisions relied upon by the CIT (Appeals) while rejecting his claim for deduction, are not apposite and are not applicable to the facts of the case in hand. 11. Thus, the sum and substance of the arguments advanced by Shri Shanti Bhushan is that the expenditure incurred on coronary by-pass heart surgery is allowable under section 37 and/or also under section 31. 12. Learned Departmental Representative, on the other hand, supported the orders of the authorities below. He contended that the primary object of the assessee in incurring the expenditure on coronary by-pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in incurring the expenditure on by-pass surgery was not to live longer but to enable himself to continue his professional activities efficiently and effectively. That was how the arguments proceeded and concluded. 16. We have considered the submissions made by the assessee and by the learned departmental representative and have gone through the record of the case. Section 31 reads as under : " In respect of repairs and insurance of machinery, plant or furniture used for the purposes of the business or profession, the following deductions shall be allowed (i) the amount paid on account of current repairs thereto ; (ii) the amount of any premium paid in respect of insurance against risk of damage or destruction thereof ". 17. The word " plant " is defined in section 43(3). It includes " ships, vehicles, books, scientific apparatus and surgical equipment used for the purposes of the business or profession." 18. According to the assessee, since section 43(3) gives only an inclusive definition, a wider meaning should be assigned to the word " plant ". The definition of " plant " as given in section 43(3) is similar to the definition of this word as given in section 10(5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary fittings etc. in a bath room is one of the essential amenities or convenience which are normally provided in any good hotel, in the present times. It was held that if the partitions in Jarrolds case could be used for having business of the trader, it is incomprehensible how sanitary fittings could be said to have no connection with the business of the hotelier. It was held that sanitary fittings in the bath room in a hotel are " plant " within section 10(2)(vib) read with section 10(2)(5). 20. Their Lordships of the Gujarat High Court in the case of Elecon Engg. Co. Ltd. after extensive reviewing the case law on the topic held that drawings and patterns by themselves did not perform any mechanical operations or process which constitute know-how and are fundamental to the assessee's manufacturing business' are " plant ". We cannot do better than quote the following passage from the said decision of the Gujarat High Court occurring at page 698 of the report :--- " On reviewing these authorities, a broad consensus emerges from which the essential characteristics of plant can be clearly gleaned. The word ' plant ' in its ordinary meaning, is a word of wide import and in the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urring at page 96 of the Report : " In other words, plant would include any article or object fixed or movable, live or dead, used by a businessman for carrying on his business and it is not necessarily confined to an apparatus which is used for mechanical operations or processes or is employed in mechanical or industrial business. In order to qualify as plant, the article must have some degree of durability, as for instance, in Hinton v. Maden Ireland Ltd. [1960] 39 ITR 357 (HL), knives and lasts having an average life of three years used in manufacturing shoes were held to be plant. In CIT v. Taj Mahal Hotel [1971] 82 ITR 44 (SC) the respondent, which ran a hotel, installed sanitary and pipeline fittings in one of its branches in respect whereof it claimed development rebate and the question was whether the sanitary and pipeline fittings installed fell within the definition of plant given in section 10(5) of the 1922 Act which was similar to the definition given in section 43(3) of the 1961 Act and this court after approving the definition of plant given by Lindley L.J. in Yarmouth v. France [1987] 19 QBD 647, as expounded in Jarrold v. John Good and Sons Ltd. [1962] 40 TC 68 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression used is " used for the purpose of the business or profession ". Dictionary meaning of the word " used " when used as verb is--- " to put to some purpose : to avail oneself of : to observe, practise, follow : to resort to (a place) to behave, comport (oneself) : to habituate : to treat or behave towards to make use of a person." It cannot be said that the assessee, when he is engaged in his professional activities as a lawyer is using his heart for that purpose. As the dictionary meaning indicates, it is only when a person having power or control over a thing which is used, can be said to have used that thing. The function of a human heart is involuntary. A human being has no choice in the matter of functioning of his heart unlike some other organs of his body. He can use at will his fingers as a gitarist or as a cricketer. He can use his vocal cord at will to render a song. He can control his voice and by long practice and become a recognised vocalist. Similarly, a gitarist or a cricketer by long practice, can be a successful gitarist or cricketer by using his fingers in the manner he likes. Some can't be said of heart. A man cannot stop or regulate the functioning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry life one would wish to have a healthy heart. In the case of the assessee if he had not undergone by-pass surgery he would have run the risk of another heart attack in view of the impaired condition of his heart. To live longer is a human instinct and motivated by this instinct the assessee incurred expenses on by-pass surgery. The primary purpose of the assessee in incurring the expenditure, was to live longer with a healthy heart and to avoid the risk of another heart attack. All other considerations including that of earning or augmenting professional income were secondary. Even if such a desire lived in his bosom, that is in a way purely personal and in the realm of seeking self as there is no obligation attached to the State, to make a man perfect in health in order that he earns more income for the State. State is interested in tax, if a person earns income. It is not interested in forcing people to cam for its income. The expenditure is, therefore, personal in nature and further the expenditure cannot also be said to have been incurred wholly and exclusively for the purpose of profession. By undergoing by-pass surgery the assessee has only incidentally benefited in pursuin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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