JUDGMENT
Ajit K. Sengupta, J.
1. In this reference under Section 256(2) of the Income-tax Act, 1961, for the assessment year 1963-64, the following two questions of law have been referred to this court :
“(1) Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the Income-tax Officer was wrong in passing an order under Section 154 of the Income-tax Act, 1961, withdrawing
the development rebate in respect of electrical installations of the building
of the assessee ?
(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the matter in issue was debatable and, as such, it was wrongly brought into the ambit of Section 154 of the Income-tax Act, 1961, by the Income-tax Officer and in that view cancelling the order under Section 154 of the said Act ?”
2. The facts briefly stated are that, in the original assessment of the assessee for the year under consideration, the Income-tax Officer allowed development rebate on machinery and electric installations of the building which was partly let out. The machinery and electrical installations served a part of the building which was used for the purpose of the business as well as that part used by the tenants.
3. Later on, the Income-tax Officer was of the opinion that the said development rebate had been wrongly allowed in respect of the electric installations because the assets concerned were not wholly used for the purpose of the assessee’s business. The Income-tax Officer, after issuing a show-cause notice and giving the assessee an opportunity of hearing, passed an order under Section 154 of the Act withdrawing the said development rebate.
4. Aggrieved by the said order, the assessee brought the matter by way of appeal before the Appellate Assistant Commissioner of Income-tax who held that the issue whether the development rebate was allowable or not was a debatable one and that, therefore, in respect of such issue, the order under Section 154 of the Act could not be passed by the Income-tax Officer.
5. Thereafter the Revenue filed an appeal before the Tribunal. The Tribunal by its order dated March 22, 1975, considered the identical question for the previous assessment year 1962-63 and held that the matter was debatable and could not be brought within the ambit of Section 154. The Tribunal, therefore, cancelled the order of the Income-tax Officer under Section 154. The facts relating to the year under consideration being identical and the parties not having urged any fresh grounds before the Tribunal, the Tribunal upheld the order of the Appellate Assistant Commissioner.
6. Development rebate in respect of machinery or plant can be allowed only where such machinery or plant has been “wholly used for the purposes of the business” carried on by the assessee. The Kerala High
Court in CIT v. Ouchterlony Valley Estates (1938) Ltd. [1965] 58 ITR 618, held that the expression “wholly used” does not mean “exclusively used”. The meaning that can be attributed to the expression “wholly used” is “used in entirety”. It appears that the Madras High Court in CIT v. Pandyan Bank Ltd. [1969] 71 ITR 707, struck a different note in holding that the user of the assets must be with reference to and only for the purpose of the business carried on by the assessee. Thus the issue involved in the rectification proceeding is not free from doubt. Section 154 cannot be resorted to in order to make a revision in a matter on which there could be two plausible interpretations.
7. For the reason aforesaid, both the questions in this reference are answered in the affirmative and in favour of the assessee.
8. There will be no order as to costs.
Bhagabati Prosad Banerjee, J.
9. I agree.