COMMISSIONER OF INCOME-TAX, PUNJAB JAMMU & KASHMIR & HIMACHAL PRADESH, PATIALA versus M/S. ALPS THEATRE, PATIALA

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COMMISSIONER OF INCOME-TAX, PUNJAB JAMMl' & KASHMIR & HIMACHAL PRADESH, PATIALA v. M/S. ALPS THEATRE, PATIALA

March 15, 1967

[J. C. SHAH, S. M. S!KRI AND V. RAMASWAMI, JJ.)

Indian /ncome·tax Act, 1922 (II of 1922), s. 10(2) (4)-Depreciation

-If land included.

The Revenue authorities did not allow depreciation on the cost of The Appellate land alongwith the cost of building standing thereon. Tribunal accepted the assessee's appeal and the High Court answered the question in favour of the assessee. the Revenue:

to this Court by

In appeal

HELD : The appeal must be allowed. Building under s. · 10(2), does not include tho site because there can

not be any question of destruction of the site. (183 El

The word used in s. 10(2) (vi) is "depreciation" and "depreciation" means 11a decrease in value of property through wear, deterioration, or obsolescence, and allowance made for this in book-keeping, accounting etc."

In that sense land cannot depreciate. (183 HJ

By r. 8 of the Indian Income-tax Rules the rate of depreciation is furnJ It would be difficult to appreciate why on the nature of the structure. the depreciation of land would be dependant on the class of structures. (184 D-El

The whole object of s. 10 is to arrive at the assessable income of a If depre building after allowing necessary expenditure and deductions. ~iation on land was allowed it would give a wrong picture of the true mcome. (184 F-G]

Corporation of the City of Victoria and Bishop of Vancouver Island.

[1921] 2 A.C 384, distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 26 of

1966.

Appeal from the judgment and order dated October 28, 1964

of the Punjab High Court in I. T. Reference No. 28 of 1962.

S. K. Mitra, Gopa/ Singh, S. P. Nayyar and R. N. Sachthey,

for the appellant.

Veda Vvasa and B. N. Kirpal, for the respondent. The Judgment of the Court was delivered by SiRri J. At the instance of the Commissioner of Income T~x, the App~llatc Tribunal, Delhi Bench "C", referred the following question :

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"Whether the cost of land is entitled to depre~iatton under the ,chedule to the Income-tax Act alongw1th the cost of the building standing thereon?"

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SUPREME COURT REPORTS

[ 196 7] 3 S.C.R.

This question arose out of the following facts : The respon dent, M/ s Alps Theatre, hereinafter .referred to as the assessee, carries on business as exhibitor of films. The Income Tax Officer initiated proceedings under s. 34(1)(b) of the Indian Income Tax Act, 1922, on the ground that in the original assessment deprecia· .tion was allowed on the entire cost of Rs. 85,091/·, shown as cost .of the building which included Rs. 12,000 / • as cost of land. The lnoome Tax Officer, by his order dated February 22, 1959, recom puted the depreciation, excluding cost of land. The assessee ap pealed to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner upheld the order of the Income Tax ·Officer. The assessee then appealed to the Appellate Tribunal In accepting the appeal it observed which accepted the appeal. .as follows :

"You cannot conceive of a building without the land beneath it. It is not possible to conceive of a building without a bottom. What Section (10) (2) (vi) of the Act says is that depreciation will be allowed on the building. The word "building" itself connotes the land upon which something has beeli constructed. therefore, wrong on the part of the authorities below to exclude the value of the land upon which some construction was made. The true meaning of the word 'building' means the land upon which some construction has been made. The two must necessarily go together."

It was,

The High Court answered the question referred to it against ·the Department. Mahajan, J., obierved that in Section 10(2)(vi) of the Income Tax Act, a building is placed at par with machinery ·and furniture and is treated as a unit, and, therefore, for the pur poses of depreciation a building cannot be split up into building material and land. He further observed that if the Legislature wanted to exclude land from the build:ng for purposes of depre . ciation it could have said so. He then added :

"Moreover, depreciation is allowed on the capital. The capital here is a unit building. If later on it is sold and it fetches more than its written down value the surplus is liable to tax [see in this connection Section 10(2) (vii) proviso.]"

He felt that "the crux of the matter is that the building is treated as a unit for purposes of depreciation or repair, and there is no warrant in the Act which would permit ,us to split the unit for the purposes of section 10." He further felt that at :my rate two equal· Jy plausible interpretations are possible and the one in favour of !he asscssee should be adopted.

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c.1.T. v. ALPS THEATRE (Sikr1', J.)

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Dua, J., in a concurring judgment, felt that the question was not free from difficulty, but he answered the question in favour of the assessee on the ground that much could be said for both points of view and the view in support of the assessee's submission had found favour with the Tribunal which had not been shown to be clearly erroneous.

The answer to the question depends upon the true interpreta tion of.s. 10(2)(vi), and in particular whether the word "building" occurring in it includes land. Section 10 deals with the profits and gains derived from any business, profession or vocation. Section I 0(2) provides that such profits or gains shall be computed after making certain allowances. The object of giving these allowances is to determine the assessable income. The first three allowances consist of allowance for rent paid for the business premises, allow ance for capital repairs and allowance for interest in respect of capital borrowed. Sub-clauses (iv), (v), (vi), (vi-a) and (vii) of s. I 0(2) deal with allowances in respect of buildings, machinery, plant or furniture. The word "building" must have the same meaning in all these cla11ses. Sub-Clause (iv) runs as under : "in respect of insurance against risk of damage or furniture, destruction of buildings, machinery, plant, stocks or stores, used for the purposes of the busin.css, profession or vocation, the amount of any premium paid."

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"Building" here clearly, it seems to us, does not include the site because there cannot be any question of destruction of the site. Clause (v) reads :

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"in respect of current repairs

to such buildings, machinery, plant or furniture, the amount paid on ac count thereof."

This again cannot include the site. Then we come to sub-cl. (vi), the relevant portion of which reads as under:

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"in respect of depreciation of such buildings, machi nery, plant or furniture being the property of the asses sce, a sum equivalent. ... as may in any case 01· class of cases be prescribed."

It would be noticed that the word used is "depreciation" and

"depreciation" means :

"a decrease in value of property through wear, de terioration, or obsolescence; the allowance made for this in book-keeping, accounting, etc." (Webster's New World Dictionary').

In that sense land cannot depreciate. The other words to notice are "such buildings". We have noticed that in sub-els. (iv) and

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SUPREME COURT REPORTS

[1967] 3 S.C.R.

(v), "building" clearly means structures and does not include site. That this is the proper meaning is also borne out by r. 8 of the Indian Income Tax Rules, 1922. Rule 8 has a schedule, and as far as buildings are concerned, it reads as under :

Class of asset

Rate per centage

Remarks

1. Buildings -

(I) First class substantial buildings of selected materials .. . (2) Second class buildings of less sub stantial construction . .. (3) Third class buildings of constr•c tion inferior to that of second class 'buildings, but not including purely tempocary erections.

(4) Purely temporary erections such as wooden structutes.

2·5 roouble these numbers ) will be taken for fac- 5 I tory buildings, exclud ~ ing offices, godowns, 7 · 5 lofticers' and employees'

quarters.

No rate is prescribed: renewals will be allowed as revenue expenditure.

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The rate of depreciation is fixi;d _on the nature of the structure. If D In other it is a first class substantial building, the rate is less. words, first class building would depreciate at a much less rate than a second class building. It would be noticed that for purely temporary erections, such as wooden structiires, no rate of deprecia- tion is prescribed and instead renewals are allowed as revenue ex penditure. But if the contention of the respondent is right, some E rate for depreciation should have been prescribed for land under the temporary structures. Further it would be difficult to appreciate why the land under a third class building should depreciate three times quicker than land under a first class building.

One other consideration is important. The whole object of s. 10 is lo arrive at the assessable income of a business after allow ing necessary expenditure and deductions. Depreciation is allow able as a deduction both according to accountancy principles and according to the Indian Income Tax Act. Why ? Because other wise one would not have a true picture of the real income of the business. But land does not depreciate, and if depreciation was allowed it would give a wrong picture of the true income.

The High Court relied on Corporation of the City of Victoria and Blshop of Vancouver Island('), but in our view this case is distinguishable and gives no assistance in determining the meaning of the word 'buildings'"in the context of s. 10(2)(vi). In this case th~ ~rivy Coun?il ha~ to construe s. 197{ 1) of the Municipal Act, Bnllsh _Columbia, which exempted from municipal rates and taxes

(1) [1921] 2 A.C. 384.

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c.1.T. v. ALPS THBATRB (Sikri, /.)

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"every building set apart and in use for the public worship of God." The Privy Council held that the above exemption applied to the· land upon which a building of the description mentioned above was erected as well as to the fabric. The Privy Council was not concerned with the question of depreciation but with the question of exemption from Municipal rates.

In the result the appeal succeeds, the judgment of the High Court set aside and the question referred is answered in the nega tive and against the assessee. In the circumstances there will be no order as to costs.

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Appeal allowed.

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I.4SupCI/67-13