1981 (11) TMI 47 - HC - Income Tax

Summary

Issues Involved:
1. Whether the assessee had the right to substitute the market value as on January 1, 1954, in respect of depreciable assets.
2. Whether house rent allowance should be treated as part of perquisites u/s 40(a)(v) of the Income-tax Act, 1961.

Summary:

Issue 1: Right to Substitute Market Value for Depreciable Assets
The court examined whether the assessee could substitute the market value as on January 1, 1954, for depreciable assets when computing capital gains. The assessee, a limited company, had sold factory buildings and claimed a capital loss by revaluing the buildings as on January 1, 1954, under s. 55(b) of the I.T. Act. The ITO, however, argued that s. 50(1) was a special provision for depreciable assets and did not allow such substitution. The court agreed with the ITO, stating that s. 50 modifies the application of ss. 48 and 49 for depreciable assets, making the written down value the cost of acquisition. Consequently, the option under s. 55(2) was not available, and the cost of acquisition had to be the written down value as defined in s. 43(6).

Issue 2: House Rent Allowance as Part of Perquisites
The court considered whether house rent allowance should be treated as part of perquisites u/s 40(a)(v). The ITO had disallowed the excess of perquisites over 1/5th of the salary, including house rent allowance, servant's salary, and fuel and lighting expenses. The Tribunal had deleted the addition, holding that house rent allowance should not be treated as part of perquisites. The court, however, emphasized that the term "benefit, amenity or perquisite" in s. 40(a)(v) must exhaust all advantages an employee receives other than salary. The court disagreed with the narrow interpretation that excluded cash benefits, stating that the provision aims to limit deductible expenses to prevent siphoning off taxable profits. Therefore, house rent allowance falls within the scope of "benefit, amenity or perquisite."

Conclusion:
The court answered the question referred at the instance of the assessee in the affirmative and the question referred at the instance of the Commissioner in the negative, both in favor of the revenue and against the assessee. A copy of the judgment will be sent to the Income-tax Appellate Tribunal, Cochin Bench, as required u/s 260(1) of the Act.