COMMISSIONER OF INCOME TAX WEST BENGAL IV CALCUTTA Vs. D P S L PVT LTD
LAWS(CAL)-1996-9-13
HIGH COURT OF CALCUTTA
Decided on September 17,1996

COMMISSIONER OF INCOME TAX, WEST BENGAL IV, CALCUTTA Appellant
VERSUS
D.P.S.(I) PVT.LTD., CALCUTTA Respondents

JUDGEMENT

V.K.Gupta, J. - (1.)By this common judgment we propose to dispose of the two Income tax references. being I.T.R No. 60 of 1992 and I.T.R. No. 128 of 1993. Same question of law in both the references has been referred for our opinion. The question reads as under: "Whether, on the facts and in the circumstances of the case and on a correct interpretation of the relevant Rules for the allowance of extra shift allowance under the Income Tax Rules, 1962, the Tribunal was Justifies in law in holding that data processing machine, central air conditioning plant and air-conditioners are entitled to extra shift allowance though the works NESA (no extra shift allowance) are inscribed against such of the above Machinery or Plant in the said Rules?"
(2.)Under Rule 5 of the Income-Tax Rules 1962 an assessee is entitled to claim depreciation allowance in respect of depreciation of buildings, machinery, plant or furniture as may be included at the percentages specified in the second column of the table in part I of appendix I to 1962 Rules on the actual cost or, as the case may be, the written down value of such assets aforesaid for the purposes of the business or profession of the assessee at any time during the previous year, Since part I of appendix I to the Rules has been made the basis of claiming depreciation in terms of Rule 5 of 1962 Rules, we have to refer to this said part I of appendix I to determine and find out as to whether the assessee is entitled to claim extra-shift-allowance on data processing machines, central air-conditioning plants and the air-conditioners. Before we do that it shall be advantageous to refer to clause IV occurring in Part I of appendix I to 1962 Rules. This clause deals with and relates to the provision for extra-shift depreciation allowance and says that an extra-shift-allowance upto a maximum of an amount equal to one half of the normal allowance shall be allowed where a concern claims such allowance on account of double shift working and establishes that it has worked double shift. Various other stipulations are contained in clause IV relating to the provision and grant of extra-shift-depreciation allowance. While prescribing for the provision and grant of extra-shift depreciation allowance. clause IV Itself clearly stipulates that the extra-shift allowance shall net be allowed in respect of any item of machinery or plant which has been specifically excepted by inscription of the letters NESA against such air item occurring III Part I of appendix I and also in respect of item, of machinery mentioned therein. Relevant extract of the illustration forming part of clause IV in part I of appendix I may be reproduced to indicate the clear intention about the disallowance and non-provision of the extra-shift-allowance. The extract reads as under: 'The extra Shift allowance shall not be allowed in respect of any item of machinery or plant which has been specifically by inscription of the letters 'N.E.S.A.- (meaning -no extra shift allowance) against it in sub-item Oil above and also in respect of the following items of machinery and plant to which the general rare of depreciation of 10% applies :
(3.)While going through various items contained in part I we find that against the items of data processing machines, air-condition machines and air-conditioners, the inscription NESA has been written and inscribed. The fact that the inscription NESA has been inscribed against the aforesaid three items occurring in part I of appendix 1. The Intention of the legislature is very clear that even though extra-shift-allowance is allowable for same Items of plant and machinery where a concern claims such allowance on account of double shift working etc. etc., such allowance has been specifically disallowed in respect of such plants and machinery, despite the aforesaid claim of the assesses being entitled to if the inscription NESA is found incorporated and mentioned against the relevant entry relating to such plant and machinery in part of appendix I. If we read Rule 5 of 1962 Rules we find that the allowance of depreciation has to be calculated at the percentage specified in the second column of the Table in part I of appendix I to the Rules and in accordance with the previsions contained herein. A combined reading of Rule 5 with Clause IV in part I of appendix I and the second illustration (supra) contained in clause IV, clearly suggests that there is no ambiguity about the intention of the Legislature in not granting and allowing extra-shift-allowance in respect of the items of plant and machinery mentioned in part I against which the inscription NESA finds a place.
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