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TMI Blog2006 (7) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 43B of the Income-tax Act, 1961? 2. The assessee is a company engaged in the business of leasing and hire purchasing. The assessee claimed 100% depreciation with regard to certain assets leased out, namely, gas cylinders and spindles. The assessing officer refused to grant 100% depreciation in respect of those assets on the ground that they should be used collectively and cumulatively, and not individually and in isolation. On appeal, the said finding of the assessing officer was confirmed by the Commissioner of Income-tax (Appeals). 3. Similarly, the assessing officer also disallowed the contributions made by the assessee toward provident fund under section 43B of the Income Tax Act (for brevity "the Act") on the ground that the payments made by the assessee after the due date under the relevant statute, viz., the Provident Fund Act, even though they were made during the accounting year would not be deductible as per the second proviso to Section 43 B of the Act then in force. On appeal, the Commissioner of Income-tax (Appeals) sustained the said disallowance. 4. The assessee preferred appeals before the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he buys or makes for sale and that it includes all goods and chattels, fixed or movable, live or dead, which he keeps for permanent employment in his business". 10. In CIT v. Taj Mahal Hotel, [1971] 82 ITR 44 (SC), while deciding whether a sanitary and pipeline fittings installed in a hotel could be treated as plant, the Apex Court answering the question in affirmative held that the intention of the Legislature was to give the expression a very wide meaning. 11. The Gujarat High Court in CIT v. Elecon Engineering Co. Ltd., [1974] 96 ITR 672, held the word "plant" in its ordinary meaning is a word of wide import and it must be broadly construed having regard to the fact that articles like books and surgical instruments are expressly included in the definition of plant in section 43(3) of the Act. It includes any article or object, fixed or movable, live or dead, used by a businessman for carrying on his business. It is not necessarily confined to an apparatus which is used for mechanical operations or processes or is employed in mechanical or industrial business. It would not, however, cover the stock-in-trade, that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4] 186 CTR 102 : [2003] 264 ITR 269 considered the decision in First Leasing Co. of India Ltd. v. CIT, referred supra, and took the same view. 15. This Bench, after referring to the decisions in First Leasing Co. of India Ltd. v. CIT and CIT Vs. Alagendran Finance Ltd, referred supra, has also taken a similar view in CIT v. Upasana Finance Ltd., [2006] 286 ITR 179 (Mad) and held that on printing cylinders, MS bins and Shippers Sintex Ice Boxes, depreciation of 100% is allowable under the first proviso to Section 32(1) (ii) of the Act, and each of these assets is a plant individually as defined under Section 43(3) of the Act. 16. Of course, an argument was advanced by Mrs. Pushya Sitaraman, learned Senior Standing Counsel appearing for the Revenue that spindles, unless fit into other accessories, cannot be considered as a plant by itself independently. But, we are unable to appreciate the said contention because the Gujarat High Court in Aruna Mills Ltd., v. CIT [1966] 59 ITR 507, while dealing with replacement of ordinary spindles by roller bearing spindles, held that though spindles were not self-contained units, they must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of section 36, and where such payment has been made otherwise than in cash, the sum has been realised within fifteen days from the due date. 21. Explanation to clause (va) of sub-section (1) of section 36 of the Act reads as follows : "Explanation - For the purposes of this clause, "due date" means the date by which the assessee is required as an employer to credit an employee's contribution to the employee's account in the relevant fund under any Act, rule, order or notification issued thereunder or under any standing order, award, contract of service or otherwise." (emphasis supplied) 22. By Finance Act, 2003, which came into force from 1.4.2004, the said second proviso to section 43-B was omitted the result being, the assessee is entitled to the deduction of payment made towards provident fund, etc. when such payment is actually made by the assessee on or before the due date applicable for filing return, irrespective of the fact that such payment is made on or before the due date by which the assessee is required to credit the contribution to the employee's account in the relevant fund under the relevant Act. 23. Mr. Senthilkum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strained to examine the instant case on the basis of above tests. The second proviso to section 43B of the Act, which stands omitted by the Finance Act, 2003 with effect from 1.4.2004, related to a condition imposed on the assessee to claim deduction of statutory contribution. The condition under the said second proviso is that to claim deduction, the assessee should make payment towards the contribution before the due date under the relevant Act, rule, order or notification issued t hereunder or under any standing order, award, contract of service or otherwise. 27. It is a well-settled principle in law that the Court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The object of interpreting a statute is to ascertain the intention of the legislature enacting it. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said [vide: Sangeeta Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2003-04, the Notes on Clauses of Finance Bill, 2003 (see [2003] 260 ITR(St.) 128, 142) dealing with section 43B and the Memorandum explaining the provisions in the Finance Bill, 2003 (see [2003] 260 ITR (St.) 191, 210) dealing with section 43B of the Act, and we find that they do not help the assessee to satisfy either of the above tests in favour of the assessee. It is therefore not permissible in law to take a liberal view or lenient approach to give retrospective effect to the deletion of second proviso to section 43B of the Act so as to apply the same to the assessment year 1994-95, particularly when there is no indication in the Finance Act, 2003 from the language used and from the object indicated that the legislature intended expressly or by implication that the second proviso to section 43B was deleted to cure an acknowledged evil for the benefit of the community as a whole or to remove any such hardship, nor there is any express provision in the statute that such deletion of second proviso to section 43B of the Act will have any retrospective effect. 31. Mr. Senthilkumar, learned counsel for the assessee took us through the Report of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee in this regard. 33. The test to be applied for deciding as to whether a later amendment should be given retrospective effect, despite a legislative declaration specifying a prospective date as the date from which the amendment is to come into force, is as to without the aid of the subsequent amendment the unamended provision is capable of being so construed as to take within it's ambit the subsequent amendment [vide: CWT v. B.R. Theatres and Industrial Concerns P. Ltd. [2005] 272 ITR 177 (Mad)). 34. In the instant case, the unamended provision enables the assessee to pay contribution towards provident fund, superannuation fund, gratuity fund, etc. before the due date under the respective enactments, whereas the amended provision, due to omission of second proviso to section 43-B of the Act, enables the assessee to pay contribution to provident fund, superannuation fund, gratuity fund, etc. before the filing of the return. In other words, if the assessee fails to pay contribution to the provident fund, superannuation fund, gratuity fund, etc. before the due date under the relevant Act is not entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution not made within the due date, cannot be allowed as a deduction in view of section 43B of the Income-tax Act, 1961. 39. The Calcutta High Court in C .I.T. v. Sudera Services Pvt. Ltd. [2004] 268 ITR 505 again held that so long as clause (b) of section 43B of the Income-tax Act, 1961, and the Explanation exist in unmodified terms in the statute book, provident fund contributions must be made within the due date for those to qualify for deductions under the Income-tax Act. 40. In C.I.T. v. Udaipur Distillary Co. Ltd. [2005] 274 ITR 429aDivision Bench of Rajasthan High Court held that in order to avail the benefits of deduction under clause (b) of section 43B in respect of contributions to the provident fund, superannuation fund and gratuity fund or any other funds for the welfare of the employees, the sums are not only to be actually paid before the end of the previous year but are further required to be paid within the time stipulated under the relevant statute or notification, standing order, award, contract of service or otherwise and if the payments have not been made within the stipulated time, the deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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