Judgment Case ID: 5227

Judgment:
Civil Appeal Nos 597 599 (NT) of 1985 From the Judgment and order dated 3.5.1983 of the Punjab & Haryana High Court in Income Tax Reference Nos. 61	 63 and 64 of 1977 Dr. Devi Pal	 V.S. Desai	 O.C. Mathur	 Ms A K. Verma	 Ms. Meera Verma and section Sukumaran for the Appellant. S.C. Manchanda and Ms. A Subhashini for the Respondent The Judgment of the Court was delivered by PATHAK	 J. These appeals by special leave are directed against the judgment of the High Court of Punjab and Haryana holding that the sale of insulated copper wires manufactured by the appellant 480 assessee does not entitle it to the benefits conferred by sections 33(1)(iii) (c)(A) and 80E of the Income Tax Act	 1961 for the assessment years 1966 67 and 1967 68 and the benefits conferred by sections 33(1)(b)(B)(i) and 80I of the Income tax Act	 1961 for the assessment years 1968 69 to 1971 72 Section 33 of the Income Tax Act	 1961 provides for the grant of development rebate. Prior to April 1	 1968	 section 33(1)(iii)(c)(A) of the Income Tax Act	 1961 provided: "(1) In respect of a new ship acquired or new machinery or plant (other than office appliances or road transport vehicles) installed after the 31st day of March	 1954	 which is owned by the assessee and is wholly used for the purposes of the business carried on by him	 a sum by way of development rebate	 equivalent to (i) . . . . . . . . (ii) . . . . . . . . (iii) in the case of machinery or plant installed after the 31st day of March	 1961 (a) . . . . . . . . (b) . . . . . . . . (c) where the machinery or plant is installed after the 31st day of March	 1965 (A) for the purposes of business of construction	 manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule (a) thirty five per cent	 of the actual cost of the machinery or plant to the assesee	 where it is installed before the 1st day of April	 1970. and (b) twenty five per cent	 of such cost	 where 481 it is installed after the 31st day of March	 1970. (B) . . . . . . shall	 subject to the provisions of section 34	 be allowed as 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. " This provision was substituted	 with effect from April 1	 1968	 by the present provision which reads: "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 a 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). (A) . . . . . . . . (B) in the case of machinery or plant	 (i) where the machinery or plant is installed for the purposes of business of construction	 manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule	 (a) thirty five per cent of the actual cost of the machinery or plant to the assessee	 where it is in stalled before the 1st day of April	 1970	 and (b) twenty five per cent of such cost	 where it is installed after the 31st day of March	 1970. 482 These provisions relate to development rebate. A deduction was also available to an assessee in respect of profits and gains from specified industries in the case of certain companies prior to April 1	 1968. Section 80E provided: "80E (1) In the case of a company to which this section applies	 where the total income (as computed in accordance with the other provisions of this Act) includes any profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction	 manufacture or production of any one or ( more of the articles or things specified in the list in the Fifth Schedule	 there shall be allowed a deduction from such pro fits and gains of an amount equal to eight per cent. thereof in computing the total income of the company. " Section 80E was deleted with effect from April 1	 1968 and was substituted by section 80 I which provides: "80 I(1) In the case of a company to which this section ap plies	 where the gross total income includes any profits and gains attributable to any priority industry	 there shall be allowed	 in accordance with and subject to the provisions of this section	 a deduction from such profits and gains of an amount equal to eight per cent	 thereof	 in computing the total income of the company. " It is not disputed between the parties that the assessee is a company to which the provisions of section 80E and subsequently of section 80I will apply. Section 80I	 it may be noted	 was deleted by the Finance Act	 1972 with effect from April 1	 1973. With effect from April 1	 1968 the expression 'priority industry ' was defined in section 80B(7) as meaning: "the business of generation or distribution of electricity or any other form of power or of construction	 manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule or the business of any hotel where such business is carried on by an Indian company and the hotel is for the time being approved in this behalf by the Central Government. " 483 The word 'Sixth ' was substituted for 'Fifth ' by the Finance Act 1968 A with effect from April 1	 1969. With effect from April 1	 1964 the Fifth Schedule set forth a list of articles and things and items 7	 17 and 24 which possess some relevance to this case read as follows: "(7) Equipment for the generation and transmission of electricity including transformers	 cables and transmission towers	 (17) Electronic equipment	 namely	 radar equipment	 computers	 electronic accounting and business machines	 electronic communication equipment	 electronic control instruments and basic components	 such as valves	 transistors	 resisters	 condensors	 coils	 magnetic materials and microwave components	 (24) Component parts of the articles mentioned in items Nos. (4)	 (5)	 (7) and (9)	 that is to say	 such parts as are essential for the working of the machinery referred to in the items aforesaid and have been given for that purpose some special shape or quality which would not be essential for their use for any other purpose and are in comp lete finished form and ready for fitment. " The Sixth Schedule which replaced the Fifth Schedule with effect from April 1	 1969 contained identical items 7	17 and 24. These appeals relate to the assessment years 1966 67 to 1971 72. The assessee carries on the business of manufacture and sale of insulated copper wires. Before the Income Tax officer	 it claimed that it constituted a priority industry for the purposes of the provisions of sections 33(1)(iii)(c)(A) and 80E read with items 7	 17 and 24 of the Fifth Schedule of the Income Tax Act	 1961 for the first two years and sections 33(1)(b)(B)(i) and 80 1 read with items 7	 17 and 24 of the Fifth or the Sixth Schedule	 as the case may be	 of the Income Tax Act	 1961 for the latter four years. The assessee claimed that it was entitled to the benefits conferred by those provisions for the aforesaid assessment years as a 'priority industry '. It asserted that the wires manufactured by it were covered by the word 'cables ' employed in the articles and things specified in items 7	 17 and 24 of the Fifth Schedule 484 for the assessment years 1966 67	 1967 68 and 1968 69 and items 7	 17 and 24 of the Sixth Schedule of the Income Tax Act for the assessment years 1969 70 to 1971 72. It produced expert evidence in support of its claim. The Income Tax officer rejected the claim made by the assessee. An appeal to the Appellate Assistant Commissioner was dismissed. The assessee then appealed to the Income Tax Appellate Tribunal. The Appellate Tribunal allowed the six appeals and held that the assessee was entitled to the benefits claimed by it as a 'prority industry '. It noted that although the assessee had based its claim on items 7	 17 and 24 of the Schedules	 the claim was emphatically pressed in the hearing before it under item 7 alone. The question before it then was limited to the point whether the wires manufactured by the asses see fell within item 7. In disposing of the appeals	 the Appellate Tribunal adverted to its finding in the appeals for the two immediately preceding assessment years 1964 65 and 1965 66. In its appellate order for the assessment year 1964 65 it found that the assessee manufactured aluminium cables which were used in the transmission of electricity and held that	 therefore	 it was entitled to the benefit of the Fifth Schedule relevant for those two assessment years. In the appeal pertaining to the assessment year 1965 66 it considered the matter again and upheld the claim in view of its order for the preceding assessment year. It noted that the Revenue had accepted the orders and had not questioned them in reference. It found from a perusal of the Industrial Licences on the basis of which the assessee was operating that there was no change in the nature or type of the goods manufactured by it during the six assessment years before it in appeal. It observed that when it referred to aluminium cables in its earlier orders it should have described them as copper and aluminium cables. Having regard to the material before it	 the Appellate Tribunal found no reason to change its opinion from the view taken in the preceding assessment years that the manufacture of the cables attracted the benefits claimed by the assessee. Thereafter	 at the instance of the Revenue	 the Appellate Tribunal made a reference for the six assessment years to the High Court of Punjab and Haryana for its opinion on the following two questions: "Whether	 on the facts and in the circumstances of the case	 the assessee company was entitled to the benefits conferred by the provisions of sections 33(1)(iii)(c)(a) and 80E of the Income Tax Act	 1961? 485 2. Whether on the facts and in the circumstances of the case	 the assessee company was entitled to the benefits conferred by the provisions of sections 33(1)(b)(B)(i) and 80 I of the Income Tax Act	 1961?" The High Court answered those questions in favour of the Revenue and against the assessee. The High Court differed from the Appellate Tribunal and took the view that in the cases for the assessment years under consideration the Income Tax officer had come into possession of fresh facts indicating that the assessee was manufacturing copper wires of a particular type known as winding wires which were exclusively used in the manufacture of different types of gadgets and not for the purpose of generation and transmission of electricity. It observed that the wires were not meant for the generation and transmission of electricity	 and they would fall within item 7 only if they were meant solely for that purpose and not otherwise. In these appeals it is contended on behalf of the assessee that the High Court has misconstrued the facts found by the Appellate Tribunal and has	 therefore	 erroneously held that the cables manufactured by the assessee do not fall within the scope of item 7. It is urged also that the true test for determining whether the cables could be used in the generation and transmission of electricity was that laid down by the Madras High Court in Commissioner of Income Tax	 Tamil Nadu V vs Dhandayuthapani Foundry (Private) Ltd.	 [1980] 123 l. T.R. 709 where in considering the question whether an implement could be described as an agricultural implement it was observed that the real test was not whether it was exclusively used for agricultural purposes but whether it was commonly so used and whether it was intimately and directly connected with agricultural operations. The point before us is whether the cables manufactured by the assessee qualify for inclusion in item 7 of the Fifth Schedule or the Sixth Schedule	 as the case may be having regard to the relevant assessment year. Item 7 speaks of equipment for the generation and transmission of electricity	 and such equipment includes transformers	 cables and trans mission towers. To appreciate what is comprehended in item 7	 it is permissible to refer to a related entry	 item 24	 which refers to component parts of the articles mentioned	 inter alia	 in item 7. When item 24 is read in its entirety	 it is apparent that the component parts mentioned therein are component parts of what can be described as machinery. Then reading item 7 in conjunction with item 24	 the con 486 clusion is inescapable that when item 7 speaks of equipment	 reference is intended to machinery needed for the generation and transmission of electricity. The item envisages complete self contained units of equipment	 units which on being put together or connected together constitute the apparatus for the generation and transmission of electricity. Viewed in that context	 the reference in item 7 to cables must mean cables identifiable as a complete self contained unit in themselves as a distinct unit of equipment when employed in the generation and transmission of electricity. A cable does not fall within item 7 if it is merely a component	 or part of a component	 of a unit of equipment or machinery. The High Court is right in our opinion	 in holding that the Appellate Tribunal erred in ignoring the fresh evidence gathered by the Income Tax officer and considered by the Appellate Assistant Commissioner in the assessment proceedings under consideration. The sales accounts of the assessee showed that the assessee had sold winding wires used in the manufacture of different types of electrical gadgets and for the purpose of transmission of electricity. These are winding wires	 employed in coils	 winding of armatures	 etc. and can not be identified at all as cables in the sense in which item 7 conceives of cables. That being so	 the test propounded in Commissioner of Income Tax	 Tamil Nadu V vs Dhandayuthapani Foundry (Private) Ltd. (supra) does not call for consideration. In the circumstances	 the questions referred to the High Court for its opinion were rightly answered in the negative	 in favour of the Revenue and against the assessee. In the result	 the appeals are dismissed with costs. M.L.A. Appeals dismissed.

Summary:
Section 33 of the Income Tax Act	 1961 provides for the grant of development rebate. The appellant assessee	 who carried on the business of manufacture and sale of insulated copper wires	 claimed for the assessment years 1966 67 to 1971 72 that it was entitled to the benefits conferred by sections 33(i)(iii) (c)(A) and 80E read with items 7	 17 and 24 of the Fifth Schedule and sections 33(i)(b)(B)(i) and 80 I read with items 7	 17 and 24 of the Fifth or the Sixth Schedule	 as the case may be	 for the aforesaid assessment years as a "priority industry". It contended before the Income Tax officer that the wires manufactured by it were covered by the word "cables" employed in the articles and things specified in items 7	 17 and 24 of the Fifth Schedule for the assessment years 1966 67	 1967 68 and 1968 69 and items 7	 17 and 24 of the Sixth Schedule of the Income Tax Act for the assessment years 1969 70 to 1971 72. The Income Tax officer rejected the claim made by the appellant. The matter ultimately went before the High Court in a reference. The High Court answered the question in favour of the Revenue and against the appellant assessee on the ground that the wires were not meant for the generation and transmission of electricity and they would fall within item 7 only if they were meant solely for that purpose and not otherwise. Dismissing the appeal	 ^ HELD: 1. Item 7 of the Fifth Schedule speaks of equipment for the generation and transmission of electricity and such equipment includes transformers	 cables and transmission towers. To appreciate what is comprehended in item 7	 it is permissible to refer to a related 479 entry	 item 24	 which refers to component parts of the articles mentioned	 inter alia in item 7. When item 24 is read in its entirety	 it is apparent that the component parts mentioned therein are component parts of what can be described as machinery. Then reading item 7 in conjunction with item 24	 the conclusion is inescapable that when item 7 speaks of equipment	 reference is intended to machinery needed tor the generation and transmission of electricity. The item envisages complete self contained units of equipment	 units which	 on being put together or connected together	 constitute the apparatus for the generation and transmission of electricity. Viewed in that context	 the reference in item 7 to cables must mean cables identifiable as a complete self contained unit in themselves as a distinct unit of equipment when employed in the generation and transmission of electricity. A cable does not fall within item 7 if it is merely a component	 or part of a component	 of a unit of equipment or machinery.[485F H; 486A C] Commissioner of Income Tax	 Tamil Nadu V vs Dhandayuthapani Foundry (Private) Ltd.	 [1980] 123ITR 709	 inapplicable. In the instant case	 the sales accounts of the asessee showed that the assessee had sold winding wires used in the manufacture of different types of electricity. These are winding wires	 employed in coils	 winding of armatures	 etc. and cannot be identified at all as cables in the sense in which item 7 conceives of cables. [486D E]