TMI Blog1976 (6) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee calculated the development rebate allowable for Rs. 1,03,095 at Rs. 25,774 and the statutory reserve required was 75% which came to Rs. 19,330 and, therefore, in the assessment year 1962-63, the assessee did not create the necessary reserve for development rebate. In the assessment year 1963-64, the assessee created the development reserve to the extent of Rs. 20,000. The assessee thus claimed rebate at least to the extent of Rs. 20,000 minus Rs. 4,706, that is to say, the assessee claimed development rebate in the assessment year 1963-64, to the extent of Rs. 15,913. The Income-tax Officer did not allow the development rebate to the assessee in respect of the dryer as the same was installed and brought to use in 1961. The assessee preferred an appeal before the Appellate Assistant Commissioner against the order of the Income-tax Officer. The Appellate Assistant Commissioner held that admittedly in the present case the machinery had been installed and brought to use in 1961 and, therefore, the claim should have been made in the assessment year 1962-63. But, as the claim for the development rebate was not made by the assessee in the assessment year 1962-63 and has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee and is wholly used for the purposes of the business carried on by him, a sum by way of development rebate, equivalent to-- . ...... (ii) in the case of machinery or plant installed before the 1st day of April, 1961, twenty-five per cent. and in the case of machinery or plant installed after the 31st day of March, 1961, twenty per cent. of the actual cost of the machinery or plant to the assessee, shall, subject to the provisions of section 34, be allowed as a deduction in respect of the previous year in which the ship was acquired or the machinery or plant was installed or, if the ship, machinery or plant is first put to use in the immediately succeeding previous year, then, in respect of that previous year. (2) In the case of a ship acquired or machinery or plant installed after the 31st day of December, 1957, where the total income of the assessee assessable for the assessment year relevant to the previous year in which the ship was acquired or the machinery or plant installed or the immediately succeeding previous year, as the case may be, [the total income for this purpose being computed without making any allowance under sub-section (1)] is nil or is less than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te to be actually allowed is debited to the profit and loss account of the relevant previous year and credited to a reserve account to be utilised by the assessee during a period of eight years next following for the purposes of the business of the undertaking, other than-- (i) for distribution by way of dividends or profits ; or (ii) for remittance outside India as profits or for the creation of any asset outside India : Provided that this clause shall not apply where the assessee is a company, being a licensee within the meaning of the Electricity (Supply) Act, 1948 (LIV of 1948), or where the ship has been acquired or the machinery or plant has been installed before the 1st day of January, 1958. (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 under section 33 or under the corresponding provisions of the Indian Income-tax Act, 1922 (XI 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of the assessee has been upheld by the Tribunal. In Steelsworth (P.) Ltd. v. Commissioner of Income-tax [1976] 103 ITR 20 this court, while considering the provisions of section 33 and section 34 of the Act observed as follows (pages 22, 23) : " In our considered opinion, however, when the statute confers a benefit on the assessee only on the fulfilment of certain conditions, and the language is clear and unambiguous, unless the assessee has fulfilled those conditions, there is no justification for straining the language of the statute in favour of the assessee for conferring the benefit. From the record it is found that the Income-tax Officer allowed the development rebate at 35% though the required reserve was not made for the relevant assessment year by his order dated February 20, 1968. But when this apparent mistake was discovered he rectified the same by withdrawing the development rebate of Rs. 12,319 which was wrongly allowed. On a consideration of the facts and circumstances of the case, we find that the learned Tribunal correctly held that the development rebate of Rs. 12,319 was wrongly allowed by the Income-tax Officer and he was justified in withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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