TMI Blog1976 (1) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... laim for development allowance was made for the assessment year under section 33A of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). Such allowance is permissible only on compliance with certain conditions, specified in sub-section (3) of section 33A of the Act. Clause (iii) of sub-section (3) of section 33A refers to the conditions to be fulfilled in order to claim deduction under sub-section (1) of section 33A as-- " such other conditions as may be prescribed " Rule 8A of the Income-tax Rules, 1962 (in short, " the Rules ") prescribes those conditions. Rule 8A of the Rules runs : " 8A. The other conditions referred to in clause (iii) of sub-section (3) of section 33A shall be the following, namely : (a) the assessee shall, at least three months before commencing the operations for planting or, as the case may be, replanting tea bushes, give notice of his intention to do so to the Tea Board in writing in Form No. 4 : Provided that in a case where such operations have commenced before the 1st day of January, 1968, this condition shall be deemed to have been fulfilled if notice of such commencement is given by the assessee before the 1st day of Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under rule 8A(d) of the Rules. But the Tribunal found that though the relevant rule reads : "shall furnish to the Income-tax Officer along with his return of income " the term " shall " was not to be taken as mandatory in nature, that it was only directory and, therefore, non-presentation of the certificate in Form No. 5 along with the return should not lead to a loss of relief to the assessee. It was said that it being only directory in nature the Income tax Officer had discretion to receive this certificate after the date of the filing of the return and grant appropriate relief. In this view the Tribunal referred the case back to the Income-tax Officer. It is on these facts that the question formulated for reference has arisen. Sub-section (1) of section 33A provides for allowing a deduction development allowance in respect of planting of tea bushes on any land in India owned by an assessee who carries on business of growing and manufacturing tea in India. Where tea bushes have been planted on any land not planted at any time with tea bushes or on any land which had be( previously abandoned, fifty per cent. of the actual cost of planting is permissible as development a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislative practice of using " shall " even where the consequence of non-compliance is not to be one of invalidation is well recognised. The question requires examination when there is a plea that notwithstanding the use of the term " shall " in any provision it should be read as directory. It is termed directory only in the sense that the consequence of failure to comply with it would not result in the loss or forfeiture of the right or invalidity of the action. Several tests have been evolved by courts to determine whether the term " shall " in any particular context is to be read as mandatory or otherwise. Though it is generally correct to say that nullification is the natural and usual consequence of disobedience, the question is one governed mainly by considerations of justice. When the result of construing the provision as mandatory would involve injustice to innocent persons without promoting the aim or object of the Act, the legislature may not be taken to have intended such a construction. Maxwell observes at page 364 in his treatise on Interpretation of Statutes (11th edition) thus : " A strong line of distinction may be drawn between cases where the prescription ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations." The Supreme Court had adverted to the rule of interpretation in regard to the term " shall " in the decision in State of U.P. v. Babu Ram. At page 765 of the decision the Supreme Court said thus : " The relevant rules of interpretation may be briefly stated thus : When a statute uses the word 'shall', prima facie, it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the legislature the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it one way or the other, the impact of other provisions whereby the necessity of complying : with the provisions in question is avoided, the circumstance, namely, that the, statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction along with the return. The return has to be filed within the time envisaged under the provisions of the Income-tax Act and cannot be delayed for the reason that the certificate had not been obtained. In such cases an assessee may not be able to file the certificate along with the return and that for no fault of his. When the certificate, though filed later, is available to the Income-tax Officer for the purpose of determining the development allowance, the object of section 33-A of the Act would be defeated by the construction that the provision in rule 8-A requiring the certificate to be filed along with the return is a mandatory provision, non-compliance of which will disentitle the assessee to claim development allowance under section 33-A(1) of the Act. The object of the Act being one to enable an assessee to claim development allowance on proof of circumstances justifying such claim such object would be defeated by the construction that failure to file the certificate along with the return would disentitle the assessee to claim development allowance. In this view we need not go into the argument advanced by learned counsel for the assessee before us that the term " along ..... X X X X Extracts X X X X X X X X Extracts X X X X
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