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TMI Blog1992 (12) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner passed under section 263 of the Income-tax Act, 1961 ('the Act'). 4. The assessee had claimed development rebate under section 33 of the Act at 25 per cent on the Computer Systems hired out by it. The ITO completed the assessments on 14-9-1976 for 1973-74 and on 25-6-1977 for 1974-75, without allowing the assessee's claim, on the ground that the Computer Systems were mere office appliances and so did not qualify for development rebate. The assessee appealed to the Commissioner (Appeals), who held that the ground given by the ITO to reject the claim of the assessee for development rebate was not tenable. He, therefore, directed the ITO to grant development rebate according to law. The order of the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule and so it was not entitled to the higher rate of development rebate. In view of the above, he directed the ITO to modify the assessments by reducing the development rebate from 25 per cent given by the ITO to 15 per cent. 6. Shri S.E. Dastur, the learned representative for the assessee, urged before us that the learned Commissioner erred in his decision. He urged that the order of the Commissioner was not tenable in law, because it is in excess of his jurisdiction. He explained that the order of the ITO was already the subject-matter of appeal before the Commissioner (Appeals) and the Tribunal, and so, the Commissioner no longer had any jurisdiction to review that order. In other words, his contention was that the order of the IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no mistake in the order of the ITO and so the order under section 263, passed by the Commissioner, was not called for in the facts and circumstances of the case. 7. Shri M.N. Nambiar, the learned representative for the department, on the other hand, supported the order of the Commissioner. He pointed out that the order dated 28-11-1978 of the ITO giving effect to an earlier appellate order is an independent order, and it did not merge in any appellate order, inasmuch as it was not yet the subject-matter of any appeal. Hence, he urged that the Commissioner was not debarred to exercise his jurisdiction under section 263 in respect of the said orders dated 28-11-1978, which were evidently different from the original assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention raised by the assessee on merits. Section 33 reads as below : " 33. (1)(a) In respect of a new ship or new machinery or plant (other than office appliances or road transport vehicles) which is owned by the assessee and is wholly used for the purposes of the business carried on by him, there shall, in accordance with and subject to the provisions of this section and of section 34, be allowed a deduction, in respect of the previous year in which the ship was acquired or the machinery or plant was installed or, if the ship, machinery or plant is first put to use in the immediately succeeding previous year, then, in respect of that previous year, a sum by way of development rebate as specified in clause (b). (b) The sum referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five per cent of such cost, where it is installed after the 31st day of March, 1970 (iv) in any other case-- (a) twenty per cent of the actual cost of machinery or plant to the assessee, where it is installed before the 1st day of April, 1970, and (b) fifteen per cent of such cost, where it is installed after the 31st day of March, 1970." From the opening part of the section, we find that the machinery or plant should be owned by the assessee and should be wholly used for the purpose of the business carried on by him. Unless these two conditions are satisfied, no development rebate, whatsoever, is admissible. In other words, neither the higher rate nor the lower rate of development rebate is applicable unless these two basic conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g can be read into a taxing statute. If the argument for the department is accepted, then it would mean that one should read into the sub-clause 'carried on by the assessee'. These words are conspicuously absent specially when such words are present in item (iii). Even item (ii) contains the words 'used by it'. In view of this glaring contrast, it is not possible to read certain words into item (i) which are not present there. Consequently, we come to the conclusion that in order to be entitled to the development rebate under sub-clause (B)(i), it is not necessary that the assessee should own the business or carry on the business producing the articles specified in the Fifth Schedule. Hence, the order dated 28-11-1978 rightly gave the devel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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