N.V.BALASUBRAMANIAN, J. - (1.) THE above writ petitions are for a writ of declaration to declare s. 12 of the Finance Act, 1995 as ultra vires, illegal and void of the Constitution of India.
(2.) SEC . 12 of the Finance Act, 1995. A common counter -affidavit was filed on behalf of the respondents stating that the retrospective amendment made to s. 43(3) of the Act excluding tea bushes from the scope of plant is perfectly in order and it does not suffer from any infirmity.
(3.) MR . G. Sarangan, learned senior counsel appearing for the petitioner submitted that the expression, "plant" is defined in s. 43(3) of the Act in an inclusive manner and he referred to the decision of the Supreme Court in the case of Scientific Engineering House (P) Ltd. vs. CIT and submitted that the expression "plant" would include any apparatus to a businessman where he is carrying on business in respect of stock and trade and the tea bushes should also be regarded as "plant". He submitted that tea bushes have element of durability and they are assets for the assessee to carry on his business. He therefore, submitted that tea bushes satisfy all the tests of a "plant" as laid down by the Supreme Court in Scientific Engineering House (P) Ltd. case (supra). Learned senior counsel also referred to a decision of the Andhra Pradesh High Court in the case of CIT vs. Sri Krishna Bottlers (P) Ltd. and submitted that the expression, "plant" should be given a wide meaning. Learned senior counsel submitted that tea bushes satisfy the various tests of the plant. He also referred to a decision in the case of Earl of Derby vs. Aylmer 6 Tax(Cases) 665 and submitted that even prior to the enactment of the Act, tea bushes have been regarded as "plant" and there are no reasons to modify the definition of the term "plant" to exclude tea bushes with retrospective effect. Learned senior counsel also referred to the decision of the Supreme Court in the case of D. Cawasji and Co. vs. State of Mysore and submitted that the amendment made with retrospective effect sought to nullify the various orders passed by Tribunals holding that tea bushes are plants and hence, the amendment made by s. 12 of the Finance Act should be declared as invalid and unconstitutional. Learned senior counsel for the petitioner also referred to the memorandum of Finance Bill explaining the reasons for the amendment wherein it has been stated that with the result of the judicial pronouncements, double deduction was claimed on tea bushes one as replacement cost and another as depreciation allowance and to deny the double deduction in respect of replacement cost as well as depreciation allowance the legislature have amended s. 43(3) of the Act excluding tea bushes from the scope of the definition "plant". He submitted that it is not uncommon in the IT Act to claim depreciation on capital assets and claim revenue expenditure on repairs on the same assets and there is no question of any double deduction as the deduction granted under two different provisions cannot be regarded as double deduction. Learned senior counsel submitted that since the legislature have proceeded on a mistaken notion that there is a double deduction in the case of tea bushes by grant of depreciation, the amendment made should be declared as invalid and unconstitutional.;