Tag: High Court

  • Capital Allowance: Are Sanitary and Pipeline Fittings a Plant?

    Capital Allowance: Are Sanitary and Pipeline Fittings a Plant?

    C.I.T. Andhra Pradesh (the appellant)

    v

    M/S Taj Mahal Hotel, Secunderabad

    12 August 1971

    The respondent, who is the assessee, is a registered company running a hotel in Secunderabad with branches at Sultan Bazar and King Kothi in Hyderabad.

    During the previous year ending 30th September 1959, relating to the assessment year 1960-61, the assessee incurred an expenditure of Rs. 57,154/- in installing sanitary fittings and of Rs. 1,370/- for pipe-line fittings.

    The assessee claimed a development rebate on these two items at the rate of 25% under S. 10(2)(vi-b) of the Act amounting in the aggregate to Rs. 14,629/-.

    The Income Tax Officer disallowed the claim.

    On appeal, the Appellate Assistant Commissioner upheld the disallowance.

    An appeal was taken to the Appellate Tribunal.

    The Tribunal rejected the appeal holding that the definition of “plant” must necessarily be the same, whether it was for claiming depreciation under s. 10(2)(vi) or for development rebate under S. 10(2)(vi-b).

    Accordingly, it was held that the sanitary and pipeline fittings did not fall within the meaning of the word “plant”.

    High Court

    On being moved under s. 66(1) of the Act, the following question was referred for the opinion of the High Court:-

    • Whether the sanitary fittings and pipelines installed in the King Kothi branch of the Hotel constituted ‘plant’ within the meaning of sec. 10(5) of the Indian Income Tax Act; and
    • Whether the assessee is entitled to a development rebate in respect thereof under sec.10(2) of the Act.”

    The High Court answered the question in the affirmative and favoured the assessee.

    The only question that was argued before the High Court and which has been debated before us is whether sanitary and pipeline fittings in a building which is run as a hotel would fall within the meaning of the word “plant“ in section 10(2)(vi-b) of the Act.

    Section 10(1) of the Act provides that tax shall be payable by an assessee in respect of the profits and gains of any business profession or vocation.

    Sub-section (2) gives the allowances which have to be made in the computation of such profits and gains. Clause (vi) of that sub-section relates to the depreciation in respect of “such buildings, machinery, plant or furniture being the property of the assessee”.

    Clause (vi-b) of S. 10(2) is as follows:-

    "(vi-b) in respect of a new ship acquired or new machinery or plant installed after the 31st day of March 1954, which is wholly used for the purposes of that business carried on by the assessee, a sum by way of development rebate in respect of the year of acquisition of the ship or of the installation of the machinery or plant, equivalent to...........

    Section 10(5) provides inter alia that in sub-section (2), ” plant” includes “vehicles, books, scientific apparatus and surgical equipment purchased for the purpose of the business, profession or vocation”.

    The main argument of the learned counsel for the Commissioner of Income Tax, who is the appellant, is that the word “plant” should not have been given a wide meaning and should have been interpreted according to the common understanding in commercial circles among persons who deal in plant and machinery.

    It is asserted that the development rebate cannot be claimed in respect of the items which have become a part of the building itself.

    It has also been pointed out that the assessee, while claiming depreciation allowance, has included the assets in question under the head “furniture and fittings”, the rate claimed to be 9% which was duly allowed by the Income Tax Officer.

    This rate of 9% was applicable under Rule 8 only to furniture and fittings used in hotels etc.

    If the assets were to be treated as plant, only the general rate of 7% would be applicable.

    The definition of “plant” must necessarily, therefore, be the same whether it be for claiming depreciation under s. 10(2)(vi) or for development rebate under s. 10(2)(vi-b).

    It has also been suggested that the primary meaning of the word “plant” has a connection with mechanical or industrial business or the manufacture of finished goods from raw goods and that sanitary and pipeline fittings could not possibly satisfy those conditions.

    Now it is well settled that where the definition of a word has not been given, it must be construed in its popular sense if it is a word of everyday use. Popular Sense means “that sense which people conversant, with the subject matter with which the statute is dealing, would attribute to it“.

    In the present case, s. 10(5) enlarges the definition of the word “plant” by including in it the words which have already been mentioned before.

    The fact that even books have been included shows that the meaning intended to be given to “plant” is wide. The word “includes” is often used in interpretation clauses to enlarge the meaning of the words or phrases occurring in the body of the statute.

    When it is so used, these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include.

    The word “include” is also susceptible to other constructions which it is unnecessary to go into.

    The case, J. Lyons and Company Limited v. Attorney General, relied upon by the learned counsel for the appellant, apart from being distinguishable, hardly supports the appellant’s contention.

    In that case, it was I held that electric lamps and fittings in a tea shop were not part of the apparatus used for carrying on the business but were part of the setting in which the business was carried on and, therefore, were not “plant”, within the meaning of certain provisions of the War Damage Act, 1943.

    It was observed on page 286, “if these articles are plant, it can only be by reason that they are found on premises exclusively devoted to trade purposes. Trade plant alone need be considered“.

    The meaning of “plant” as given in Yarmouth v. France was accepted as correct.

    According to that meaning, “plant” includes whatever apparatus or instruments are used by a businessman in carrying on his business.

    In our judgment, the more apposite decision is that of the Court of Appeal in Jarrold (Inspector of Taxes) v. John Good & Sons Ltd.

    There the nature of the assessee’s business required that its office accommodation should be capable of sub-division into several rooms varying in size etc., according to the requirements from time to time of the agencies which it carried on.

    The office accommodation consisted of a large open floor space in which partitions could be erected so as to subdivide the floor space into several rooms of any size.

    Certain partitions were made, which were screwed to the floor and ceiling only and could be easily moved if it was desired to alter the size of the number of rooms.

    The question was whether these partitions were plant within sections 279 and 280 of the English Income Tax Act 1952 to entitle the company to allowances under those sections.

    There the material words in the statute were “where the person carrying on a trade in any year of assessment has incurred expenditure on the provision of machinery or plant for the purposes of the trade.”

    It was held that the partitions were “plant” as they were used in the carrying out of the company’s trade or business.

    Donovan, L.J. held that the partitions were used to enable the trader to cope with the vicissitudes of (1) [1944] (1) Ch. 28 1. (2) [1887] (19) Q. B. 647. (3) [1963] (1) W.L.R. 214.

    The business as it increased and diminished and relied on the finding of the commissioners that the flexibility of accommodation that the partitions provided was a commercial necessity for the company.

    Further illustrations were given of assets which would fall within the meaning of “plant”.

    “The heating installation of a building may be passive in the sense that it involves no moving machinery, but few would deny it the name of plant“.

    The same thing could, no doubt, be said of many air conditioning and water-softening installations.

    It cannot be denied that the hotelier business is carried on by adapting a building or premises in a suitable way to be used as a residential hotel where visitors come and stay and where there is an arrangement for meals and other amenities provided for their comfort and convenience.

    To have sanitary fittings etc., in a bathroom is one of the essential amenities or conveniences which are normally provided in any good hotel in the present times.

    If the partitions in Jarrold’s case (supra) could be treated as having been used for the purpose of the trader’s business, it is incomprehensible how sanitary fittings can be said to have no connection with the business of the hotelier.

    He can reasonably expect to get more custom and earn a larger profit by charging higher rates for the use of rooms if the bathrooms have sanitary fittings and similar amenities.

    We are unable to see how the sanitary fittings in the bathrooms in a hotel will not be “plant” within s.10(2)(vi-b) read with Section 10(5) when it is quite clear that the Legislature intended to give it a wide meaning and that is why articles like books and surgical instruments were expressly included in the definition of “plant”.

    In decided cases, the High Courts have rightly understood the meaning of the term “Plant” in a wide sense. (See Commissioner of Income Tax, U.P. v. Indian Turpentine and Rosin Co. Ltd.).

    If the dictionary meaning of the word “plant” were to be taken into consideration on the principle that the literal construction of a statute must be adhered to unless the context renders it plain that such a construction cannot be put on the words in question-this is what is stated in Webster’s Third New International Dictionary:- (1) [1970] (75) I.T.R. 533.

    17 4 “Land, buildings, machinery, apparatus and fixtures employed in carrying on trade or other industrial business……

    It is, however, unnecessary to dwell more on the dictionary meaning because, looking at the provisions of the Act, we are satisfied that the assets in question were required by the nature of the hotel business which the assessee was carrying on.

    They were not merely a part of the setting where the hotel business was being carried on.

    The High Court was right in not accepting the reasoning of the Tribunal based on the rates relating to depreciation under s.10(2)(vi), and the assessee has claimed that the sanitary and pipeline fittings fell within the meaning of “furniture and fittings’ in Rule 8(2) of the Rules.

    It has been rightly observed that the Rules were meant only to carry out the Act’s provisions, and they could not take away what was conferred by the Act or whittle down its effect.

    If the assessee had claimed a higher depreciation allowance, that would not detract from the meaning of the word plant in clause (vi-b) of S. 10(2). As a result, this appeal fails, and it is dismissed with costs.

    In other circumstances Sanitary and Pipeline Fittings might be part of the premises or setting and not ‘plant’ in common law. It is necessary to come to a judgement on the facts of the case.
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    18
  • Amendment of Section 77 – Appeal Against Director General’s Order to High Court

    Amendment of Section 77 – Appeal Against Director General’s Order to High Court

    Latest Update: 16-5-2022

    1. The Employment (Amendment) Bill 2021 (“the Bill”) was presented on October 25, 2021.

    2. Dewan Rakyat approved the Employment (Amendment) Bill 2021 on March 21, 2022.

    3. Dewan Negara passed the Employment (Amendment) Bill 2021 on March 30, 2022.

    4. The Employment (Amendment) Act 2022 was gazetted into law on May 10, 2022.

    However, [As of 16-5-2022] the Act has not yet come into force.

    [In force means that the Act or the secondary legislation has the force of law.]

    1. 《2021年就业(修订)法案》(”法案”)于2021年10月25日在国会提交。

    2. 下议院于2022年3月21日批准了《2021年就业(修订)法案》。

    3. 上议院于2022年3月30日也通过了《2021年就业(修订)法案》。

    4. 作为立法,2022年5月10日,《2022年就业(修正)法案》在宪报上颁布。

    然而请注意,[截至2022年5月16日] 此法尚未生效

    [生效是指该法或次级立法具有法律效力]。

    1. Some of the most significant amendments suggested to the Employment Act 1955 as a result of the Employment (Amendment) Bill 2021 (“the Bill”) include Amendment of Section 77 – Appeal Against Director General’s Order to High Court

    1. 2021年劳工(修正)法案对1955年劳工法令提出的一些重要修正,包括对第77条的修订 – 对总监的命令向高庭提出上诉

    2. To delete sections 69C, 69C of Act 265 as a consequence of the extension of the scope of Act 265. 3. To introduce a new section 69F into Act 265 to empower the Director-General to inquire into disputes relating to discrimination in employment and make any order or decision.

    2. 删除第265号法案的第69C和69C条,因为第265号法案的范围已经扩大。 3. 在第265号法案中引入新的第69F条,授权总监调查与就业歧视有关的纠纷并作出任何命令或决定。

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    Employment (Amendment) Bill 2021 Series 2021年劳工(修正)法案系列

    1. Amendment of Section 2 – Interpretation [对第2条文的修正 – 定义] https://lnkd.in/eRjMe_Ha / https://lnkd.in/eGz7Z9Dx

    2. Amendment of Section 4 – Appeals [对第4条文的修正 – 上诉] https://lnkd.in/eP82B7WQ / https://lnkd.in/eEUfudPU

    3. – Amendment of Section 18A – Calculation of Wages for Incomplete Month’s Work [对第18A条文的修正 – 服务未满整个月的工资计算方法] https://lnkd.in/epj-4VjE / https://lnkd.in/er9JzqCU

    4. Amendment of Section 22 – Limitation on Advances to Employees [对第22条文的修正 – 对雇员预支薪水的限制] https://lnkd.in/emKmjpWe / https://lnkd.in/eTVDFdH7

    5. Amendment of Section 25 – Wages to be Paid through Financial Institution [对第25条文的修正 – 通过金融机构支付工资] https://lnkd.in/eB_XgrCF / https://lnkd.in/e6WfJ2yg

    6. Amendment of Section 25A – Payment of Wages other than through Financial Institution [对第25A条文的修正 – 通过金融机构以外的方式支付工资] https://lnkd.in/eUJMRs9R / https://lnkd.in/e3PhUw37

    7. Amendment of Section 33A – Information Relating to Supply of Employees [对第33A条文的修正 – 与雇员供应有关的信息] https://lnkd.in/eGFCfPZW / https://lnkd.in/ebCtvCu9

    8. Deletion of Part VIII on the prohibition on employing women in night work, underground work [ 删除第八部分关于女性从事夜间工作、地下工作等的任何禁止] https://lnkd.in/e3ktX8xi / https://lnkd.in/ee_i3eD7

    9. Amendment of Section 37- Length of Eligible Period and Entitlement to Maternity Allowance [第37条的修订 – 符合条件的时间长度和享受产假津贴的权利] https://lnkd.in/exxNvppY / https://lnkd.in/e6hiidfN

    10. New Section 41A – Restriction on Termination of Pregnant Female Employee [新的第41A条 – 对终止怀孕女雇员雇佣合约的限制] https://lnkd.in/e75Y3WRY / https://lnkd.in/eZs76yAr

    11. Amendment of Section 42- Restriction on Termination of Female Employee After Eligible Period [第42条的修订 – 对女性雇员在合格期限后 被终止合约的限制] https://lnkd.in/edk6mNSu / https://lnkd.in/ezfke64k

    12. Deletion of Section 44A – Application of this Part Irrespective of Wages of Female Employee [删除第44A条 – 无论女雇员的工资如何,本部分都适用] https://lnkd.in/eUbtB5ia / https://lnkd.in/egngtPPf

    13. Amendment of Section 57 – Termination of Contract [第57条的修订 — 合同的终止] https://lnkd.in/eFabDdsA / https://lnkd.in/ensjPPJJ

    14. Amendment of Section 57A – Employment of Foreign Domestic Employee [第57A条的修订 — 外籍家庭雇员的雇用]’ https://lnkd.in/eNfhVrUC / https://lnkd.in/e94QMAZB

    15. Amendment of Section 57B – Duty to inform Director-General of Termination of Service of Foreign Domestic Employee [第57B条的修订 – 通知总监终止外籍家庭雇员服务的义务] https://lnkd.in/eFyc27Wn / https://lnkd.in/eeggM_AN

    16. Amendment of Section 60A – Hours of Work and Working at Night [第60A条的修订 – 工作时间每周48改成45小时和夜间工作] https://lnkd.in/eHJwU4T5 / https://lnkd.in/eMaDPbtX 17. Amendment of Section 60C – Shift Work [第60C条的修订 — 轮班工作] https://lnkd.in/eRwwe6ie / https://lnkd.in/ev42tQky

    18. Amendment of Section 60F – Sick Leave [第60F条的修订 – 病假] https://lnkd.in/ektGrFZa / https://lnkd.in/euJUaheG

    19. New Section 60FA – 7-day Paternity Leave [新的第60FA条 – 7天陪产假] https://lnkd.in/e4jNjTdv / https://lnkd.in/ertbkK65

    20. Substitution of Section 60k – Employment of Foreign Employee [取代第60K条 – 外国雇员的雇用] https://lnkd.in/e_YEsZJD / https://lnkd.in/e_YEsZJD

    21. New Section 60KA – Termination of Employment of Foreign Employee, etc. [新的第60KA条 – 外国雇员的终止雇用等等] https://lnkd.in/ebBbEQFR / https://lnkd.in/ejCpzEmb

    22. Deletion of Section 60L – Director-General may inquire into Complaint [删除第60L条 – 总监可对投诉进行调查] https://lnkd.in/eiG7iSP8 / https://lnkd.in/eYjZDYSy

    23. New Part XIIC – Flexible Working Arrangement [新的第XIIC部分 – 弹性工作安排] https://lnkd.in/ewW8gxqi / https://lnkd.in/e-5CYfr6

    24. Amendment of Section 69 – Director General’s Power to Inquire into Complaints [第69条的修订 – 总监调查投诉的权力] https://lnkd.in/eDwVsqPw / https://lnkd.in/e97eY-fw

    25. Deletion of Sections 69B, 69C, 69D and 69E [删除第69B、69c、69D和69E条] https://lnkd.in/ek-T48M7 / https://lnkd.in/eu9BRFBF 25. New Section 69F – Discrimination in Employment [新的第69F条 — 就业中的歧视 ] https://lnkd.in/e6_-G8rZ / https://lnkd.in/eVjS9Q7S

    26. Amendment of Section 70 – Procedure in Director General’s Inquiry [第70条的修订 – 总监调查的程序] https://lnkd.in/e6_-G8rZ / https://lnkd.in/eVjS9Q7S

    27. Amendment of Section 73 – Prohibitory Order by Director General to Third Party [第73条的修订 – 总监向第三方发出的禁止令] https://lnkd.in/e6_-G8rZ / https://lnkd.in/eVjS9Q7S

    28. Amendment of Section 77 – Appeal Against Director General’s Order to High Court [对第77条的修订 – 对总监的命令向高庭提出上诉] https://lnkd.in/eqZbmb_h / https://lnkd.in/eEbjDkc3

    29. Amendment of Section 81F – Offence [第81F条的修订 – 罪行] https://lnkd.in/eqZbmb_h / https://lnkd.in/eEbjDkc3

    30. Deletion of Section 81G – Application of this Part [Sexual Harassment] Irrespective of Wages of Employee [删除第81G条 – 无论雇员的工资如何, 本部分 [性骚扰] 都适用] https://lnkd.in/eTsj62rE / https://lnkd.in/eJQFdzx7

    31. New Section 81H – Notice on Sexual Harassment [新的第81H条 – 关于性骚扰的告示牌] https://lnkd.in/ejyK7uCB / https://lnkd.in/eP8GYYNT

    32. Amendment of Section 82 – Service of Summons [第82条的修订 – 传票的送达] https://lnkd.in/eGMUvfca / https://lnkd.in/e22hZMhN

    33. Amendment of Section 84 – Jurisdiction [第84条的修订 – 管辖权] https://lnkd.in/eG-BXhAi / https://lnkd.in/e_gTbnbT

    34. Amendment of Section 86 – Saving clause as to Civil Jurisdiction of Courts [第86条的修订 – 关于法院民事管辖权的保留条款] https://lnkd.in/es6Qjq-A / https://lnkd.in/eHaCZbBK

    35. New Section 87A – Court Order for Payments due to Employee [新的第87A条 – 法院命令向雇员支付应付款项] https://lnkd.in/eTGFdrP6 / https://lnkd.in/eJ9ZRA4E

    36. New Section 90B – Forced Labour [新的第90B条 – 强迫劳动] https://lnkd.in/e_JXjVxf / https://lnkd.in/eq-VRqWU

    37. Deletion of Section 93 – Offences and Penalties Under Part VIII [删除第93条 – 第八部分规定的罪行和处罚] https://lnkd.in/eDu2qZeK / https://lnkd.in/ebPvZFP9

    38. Amendment of Section 99A – General Penalty [第99A条的修订 – 一般处罚] https://lnkd.in/euzRGshx / https://lnkd.in/ena5j6ZB

    39. New Section 101C – Presumption as to Who is an Employee and Employer [新条款101C – 关于谁是雇员和雇主的推定] https://lnkd.in/e2KX3QiB / https://lnkd.in/eFHjknmX

    40. Amendment of Section 102 – Regulations [第102条的修订 – 条例] https://lnkd.in/e8UxFucD / https://lnkd.in/e8PVAmeH

    41. Saving and Transitional [节约条款及过渡性] https://lnkd.in/ehife2BB / https://lnkd.in/ekQAtgmJ

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    20
  • Whether Employer Can Amend Form CP22A

    Whether Employer Can Amend Form CP22A

    1. Section 83(3) of the Income Tax Act 1967 states:

    👉 Where an employer is about to cease to employ an individual who is or is likely to be chargeable to tax in respect of income in respect of gains or profits from the employment or where an individual under his employment dies, the employer shall, not less than thirty days before the cessation of the employment, or in respect of cessation by reason of death not more than thirty days after being informed of the death of the individual, give notice in the prescribed form to the Director-General of the cessation of the employment

    2. The question arises.

    👉 So Whether Employer Can Amend Form CP 22A or not?

    👉 Can an employer submit more than one copy of the Form CP 22A?

    🌸🌸🌸🌸🌸🌸🌸🌸🌸🌸🌸

    1. 1967年所得税法令第83(3)条文阐明:

    👉 如果雇主即将停止雇用一个人,而该人会或可能会因其雇用收入而征税,或在其雇用的雇员死亡的情况下,雇主应在停止雇用前至少30天,或在因死亡而停止雇用的情况下,在被告知该人死亡后不超过30天,以规定格式向总监发出停止雇用的通知 [即我们所谓的 CP 22A]。

    2. 问题来了:

    👉 那么雇主是否可以修改 CP 22A 表格?

    👉 雇主是否可以交超过一份的 CP 22A 表格?

    🌻🌻🌻🌻🌻🌻🌻🌻🌻

    1. Something About “Form TP 1”

    TP 1 表格,什么来的?

    https://lnkd.in/em-i-VWx

    2. Mandatory Adoption of Prescribed Forms CP21, CP22, CP22A, and CP22B

    强制性采用指定的表格 CP21、CP22、CP22A 和 CP22B

    https://lnkd.in/eBwiFntG

    3. Employer’s tax obligation Under Income Tax Act 1967

    1967年所得税法令下,雇主需要注意的条文

    https://lnkd.in/emgbwkBj

    4. CP22, PCB, Form E & EA, CP22A, CP21: Employer’s Liability to Employees for Tax Purposes – From Commencement to Cessation

    税务上,雇主对于员工的责任 – 从入职开始到离开

    https://lnkd.in/epBAHych

    5. The Difference between a Contractor / Freelancer and an Employee

    承包商/自由职业者和雇员之间的区别

    https://lnkd.in/e9nMixUW

    6. Perquisite vs Benefits in Kind

    额外补贴 vs 实物利益

    https://lnkd.in/e6Ke3SXn

    7. Forms E & CP 8D – Employees Information

    雇员信息

    https://lnkd.in/exp6nX_m

    🌳🌳🌳🌳🌳🌳🌳🌳🌳🌳🌳🌳

    10