COMMISSIONER OF INCOME TAX Vs. MALAYALAM PLANTATIONS LIMITED

JUDGEMENT

(1.) THE question referred to this court under Section 256(1) of the Income-tax Act, 1961, by the Income-tax Appellate Tribunal, Cochin Bench, is :

(2.) THIS question arises on the following facts. The reference relates to the assessment for the year 1967-68. The assessee is a plantation company owning tea, coffee and rubber plantations in the States of Tamil Nadu and Kerala. The claim for development allowance was made for the assessment year under Section 33A of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). Such allowance is permissible only 6n compliance with certain conditions, specified in Sub-section (3) of Section 33A of the Act. Clause (iii) of Sub-section (3) of Section 33A refers to the conditions to be fulfilled in order to claim deduction under Sub-section (1) of Section 33A as-

(3.) SUB-section (1) of Section 33A provides for allowing a deduction of development allowance in respect of planting of tea bushes on any land in India owned by an assessee who carries on business of growing and manufacturing tea in India. Where tea bushes have been planted on any land not planted at any time with tea bushes or on any land, which had been previously abandoned, fifty per cent. of the actual cost of planting is permissible as development allowance. Where tea bushes are planted in replacement of tea bushes that have died or have, become permanently useless on any land already planted, the development allowance was to be 30 per cent. of the actual cost of planting. Further, provisions are made in the sub-section as to the manner of allowing the deduction. It may not be necessary to advert to this for the purpose of this case. Allowance to be made under SUB-section (1) of Section 33A is mentioned as subject to the provisions of this section, namely Section 33A, SUB-section (3) provides the condition to be fulfilled in order to enable a person to claim the development allowance. There are three conditions so prescribed. The first of them calls for furnishing of the prescribed particulars. The second concerns the debiting to the profit and loss account of the relevant previous year a portion of the development allowance allowed. The third provides that the person claiming the allowance must comply with " other conditions as may be prescribed ". We are concerned only with the last of these for the purpose of this case. The conditions are prescribed by the Rules and it is agreed that Rule 8A is the relevant rule. The requirement that a certificate obtained from the Tea Board should be furnished in Form No. 5 is to be found in Clause (d) of Rule 8A. Since the requirement is that the certificate in Form No. 5 from the Tea Board is to be furnished along with the return of income for the previous year, it is said that later production would not be sufficient. Though on the facts of this case it is seen that the certificate was not produced at any time before the Income-tax Officer, but was furnished only before the Appellate Assistant Commissioner, the question referred to is not whether that would be sufficient but whether the rule requiring the production of the certificate along with the return is mandatory. In other words, if the certificate is not produced along with the return, would the assesses forfeit the claim for development allowance irrespective of the reasons for such belated production ? That is the question that we are called upon to answer.