1994 (11) TMI 93 - HC - Income Tax

Summary

Issues:
1. Interpretation of section 34(3)(b) of the Income-tax Act, 1961 regarding the withdrawal of development rebate.
2. Whether destruction of an asset by fire and compensation received constitutes a "transfer" within the meaning of the Act.

Analysis:
The High Court of Bombay was presented with a reference under section 256(1) of the Income-tax Act, 1961, regarding the withdrawal of development rebate granted for the year 1969-70. The case revolved around the destruction of a PAN-reactor by fire in 1973 and the subsequent compensation received by the assessee from an insurance company. The Income-tax Officer initiated proceedings to withdraw the development rebate granted to the assessee on the cost of the entire plant. The Commissioner of Income-tax (Appeals) and the Tribunal both held that the destruction of assets by fire did not constitute a transfer, thus the development rebate should not be withdrawn.

Upon examining the relevant provisions of section 34(3)(b) and sub-section (5) of section 155 of the Act, the court emphasized that the development rebate can be withdrawn only if the machinery is "sold or otherwise transferred by the assessee to any person" within the specified period. The court deliberated on whether the destruction of an asset and the subsequent compensation could be considered a transfer. It concluded that in cases of destruction, there is no asset available for transfer post-destruction, and hence, it cannot be deemed as a transfer to a third party.

The court relied on the decision of the Supreme Court in Vania Silk Mills P. Ltd. v. CIT [1991] 191 ITR 647, which clarified that in cases of damage, loss, or destruction of property, there is no transfer to a third party. The compensation received under an insurance policy in such instances is categorized as indemnity or compensation for the damage, not as consideration for a transfer. Even if the insurance company takes possession of the damaged property, it does not alter the nature of the claim as indemnity or compensation.

In conclusion, the court answered the question in the negative, favoring the assessee. It held that the destruction of assets by fire and the subsequent compensation did not constitute a transfer within the meaning of the Act. Therefore, the development rebate granted to the assessee should not be withdrawn.