9911796707
TMI Blog1984 (11) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... was released on December 24, 1972. The assessee claimed the entire cost of production for his Telugu film "Kodalu Diddina Kapuram " as deduction for assessment year 1971-72 and the cost of lease rights amounting to rupees 10 lakhs as a deduction for the assessment year 1972-73. The claims were based on a circular of the Central Board of Direct Taxes, dated October 4, 1969. This circular mentions that an assessee can claim write-off of the entire cost of a picture be it a producer or a distributor in the year in which the picture is released. It is on the basis of this circular that the assessee wrote off the cost of the picture in one year and the cost of purchase of lease rights in the second year. There is no dispute that this circular a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to "transfer of asset" within the meaning of section 34(3)(b) and as such the claim for development rebate is not allowable. It may be mentioned in this context that all the three Tribunals, i.e., the Income-tax Officer, the Appellate Assistant Commissioner and the Tribunal found on facts that there was a partition in the family on January 1, 1972. However, the Tribunal held that there was no "transfer" within the meaning of section 34(3)(b) inasmuch as there was no transfer by the assessee as contemplated under the said section and in any event no transfer was involved at all. It is on these facts that the Revenue sought the reference on these two questions : "1.Whether, on the facts and in the circumstances of the case, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the assessment year would have no effect. A special leave application filed against this judgment of the Kerala High Court was dismissed by the Supreme Court on November 17, 1982, vide CIT v. Geeva Film. We have, therefore, no hesitation in holding that the circulars which are in force during the relevant assessment years are the circulars that have to be applied and the subsequent circulars either withdrawing or modifying the earlier circulars have no application. Accordingly we answer the first question in the affirmative and in favour of the assessee. Question No. 2.-The Hindu undivided family is the assessee herein. Admittedly, there was a partition and the partition was on January 1, 1972, i.e., after the expiry of the years un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re attracted. In other words, he submits that since the plant and machinery in respect of which the development rebate was allowed in fact stood transferred to the partnership, there was a transfer within the meaning of this section. If this argument is to be accepted, we have to completely overlook the words "by the assessee" occurring in section 34(3)(b). We do not think that any construction would permit us to ignore or eliminate the express words in the section. If that was the intention, the Legislature would not have used the words "by the assessee" and would rest content by simply stating "machinery or plant is sold or otherwise transferred to any person". In our view, the words "by the assessee" must receive the full meaning and it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
