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TMI Blog1964 (2) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... an trade profits is meant the profits of round voyages in which Indian ports were touched by the vessels. It was agreed between the department and the assessee that this was the correct method of assessment. In so computing the profits in India in each year, the Income-tax Officer allowed depreciation admissible under the Indian Income-tax Act and the relevant Rules made thereunder. He did not, however, allow initial or additional depreciation in respect of some ships in any of the years on the finding that those ships were newly acquired by the assessee in the accounting years, prior to those in which they were brought for trading in Indian waters and were not, therefore, entitled to initial or additional depreciation. The Income-tax Officer computed the taxable profits by applying rule 33 of the Income-tax Rules. In other words, the Income tax Officer held that the assessee was entitled to initial depreciation and development rebate only on those ships which were entirely new and which were first brought into use in the Indian trade. The Income-tax Officer was of the view that as none of the concerned ships had been brought into use in the Indian trade in any of the years when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal has also held upon reading rule 8 that ships like other assets were entitled to additional depreciation. Further, it held that as a shipping company was entitled to get additional depreciation for a continuous period of five years and the fact that in the first of these years the new steamer, about which there was no dispute, did not call at the Indian ports in one year or the next, would not disentitle the assessee to this benefit not only for that year but also for succeeding years. On these facts the following question of law arises : "Whether, on the facts and circumstances of the case, the assessee-company is entitled to additional depreciation in respect of the four ships mentioned above ?" In the argument before us learned counsel for the department did not dispute that ships were entitled to additional depreciation under section 10(2)(via). We, therefore, proceed on the assumption that ships can be taken into consideration for the purposes of clause (via) of section 10(2). Mr. Debi Pal, learned counsel for the assessee, in refuting the contention of the Income-tax Officer has submitted to us that in this case no distinction can be made between the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the 31st day of March, 1948, a further sum (which shall be deductible in determining the written down value) equal to the amount admissible in clause (vi) (exclusive of the extra allowance for double or multiple shift working of the machinery or plant and the initial depreciation allowance admissible under that clause for the first year of erection of the building or the installation of the machinery or plant) (in not more than five successive assessments for the financial years next following the previous year in which such buildings are erected and such machinery and plant installed and falling within the period commencing on the first day of April, 1949, and ending on the 31st day of March, 1959);..." In our view, in construing clause (via) of section 10(2), the following principles should be borne in mind for the purpose of the present reference : (1)Section 10(2)(via) confers a relief on the assessee. It should, there fore, be strictly construed. The assessee must establish that his case falls within the terms of the clause. (2)Both section 10(2)(vi) and section 10(2)(via) grant depreciation allowances in respect of buildings, machinery or plant which are used fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Officer may deem suitable." It appears that the income of a non-resident like the assessee in the instant case that is chargeable to Indian income-tax is to be computed in the manner following: Receipts accruing in India × Net world profit Total world receipts In the statement of the case we are told that no particulars were ever furnished by the assessee of its shipping trade. An agreed basis of computation of the assessee's income for levying Indian income-tax was, therefore, arrived at. In accordance with this agreed basis the income assessable to Indian income-tax was ascertained by the following formula: Receipts actually accruing in India × Net profits of Indian trade. Total receipts for Indian trade (actually accruing - accruing from round voyages). The position, therefore, is that the present assessee's income for Indian income-tax purposes was never computed upon taking into consideration either its net world profits or its world receipts. Learned counsel for the Commissioner frankly told us that if the department for computing the Indian income of the assessee in terms of rule 33 had considered the net world profit and the tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court. The next case of Mr. Debi Pal is the judgment of the Madras High Court in Veerappa Transports v. Commissioner of Income-tax [1963] 50 ITR 442 . It has been stated in this case that if the plant or machinery is new and would be eligible for allowance in terms of section 10)(via), the fact that during the period of five years or the prescribed period under section 10(2)(via), there is a transfer of the business as such together with the newly acquired plant or machinery to another, by act of parties or by operation of law, would not defeat the claim for the allowance. Relying on this decision, learned counsel for the respondent argues before us that simply because the depreciation was not claimed in the very first year, it does not mean that a claim made in any of the subsequent years within the period prescribed in clause (via) must fail. We are of the view that this case does not support the argument of Mr. Debi Pal. We respectfully accept the principles enunciated by the Madras High Court. The facts were that a business which was being carried on by the father and his sons as members of a Hindu undivided family was transferred to a partnership consisting of some ..... X X X X Extracts X X X X X X X X Extracts X X X X
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