{"id":10556,"date":"1996-07-09T00:00:00","date_gmt":"1996-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-wilh-wilhelmsen-vs-commissioner-of-income-taxwest-on-9-july-1996"},"modified":"2018-10-25T18:08:54","modified_gmt":"2018-10-25T12:38:54","slug":"ms-wilh-wilhelmsen-vs-commissioner-of-income-taxwest-on-9-july-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-wilh-wilhelmsen-vs-commissioner-of-income-taxwest-on-9-july-1996","title":{"rendered":"M\/S Wilh Wilhelmsen vs Commissioner Of Income Tax,West … on 9 July, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S Wilh Wilhelmsen vs Commissioner Of Income Tax,West … on 9 July, 1996<\/div>\n
Equivalent citations: JT 1996 (6), 167\t 1996 SCALE (5)43<\/div>\n
Author: B Jeevan Reddy<\/div>\n
Bench: Jeevan Reddy, B.P. (J)<\/div>\n
           PETITIONER:\nM\/S WILH WILHELMSEN\n\n\tVs.\n\nRESPONDENT:\nCOMMISSIONER OF INCOME TAX,WEST BENGAL\n\nDATE OF JUDGMENT:\t09\/07\/1996\n\nBENCH:\nJEEVAN REDDY, B.P. (J)\nBENCH:\nJEEVAN REDDY, B.P. (J)\nMAJMUDAR S.B. (J)\n\nCITATION:\n JT 1996 (6)   167\t  1996 SCALE  (5)43\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t  THE 9TH DAY OF JULY,1996
\nPresent:\n<\/p>\n
      Hon’ble Mr.Justice B.P.Jeevan Reddy
\n      Hon’ble Mr.Justice S.B.Majmudar
\nManoj Arora, Ms.Shipra Ghose Jain, Manoj Pillai,
\nRahul P.Dave and D.N.Gupta, Advs. for the appellant
\nDr.V.Gaurishankar, Sr.Adv. Ms.A.Subhashini, S.Rajappa,and
\nS.N.Terdol, Advs. with him for the Respondent
\n\t\t      J U D G M E N T
\n     The following Judgment of the Court was delivered:
\nM\/S.WILH, WILHELMSEN
\nV.\n<\/p>\n
COMMISSIONER OF INCOME TAX,
\nWEST BENGAL-I.\n<\/p>\n
\t\t      J U D G M E N T
\nB.P. JEEVAN REDDY, J.\n<\/p>\n
     This appeal  is preferred\tby the assessee on the basis
\nof a  certificate of  fitness issued  by the  Calcutta\tHigh
\nCourt under  Section 66A(2)  of the  Indian Income  Tax Act,
\n1922 [the  Act]. Three questions were referred under Section
\n66(2) of  the Act  at  the  instance  of  the  Revenue.\t The
\nquestions are:\n<\/p>\n
     “1. Whether,  on the  facts and  in
\n     the circumstances\tof the case, the
\n     Tribunal was  right in holding that
\n     the assessee  was entitled\t to  get
\n     depreciation allowance under Rule 8
\n     of the  Income-tax\t Rules\teven  in
\n     respect of\t ships which  had formed
\n     part of  the assessee’s  fleet  for
\n     more than twenty year?\n<\/p><\/blockquote>\n
     2. Whether, on the facts and in the
\n     circumstances  of\t the  case,  the
\n     Tribunal was  right in deleting the
\n     addition of Rs.55,280\/- made by the
\n     Appellate Assistant Commissioner an
\n     account of\t excess depreciation  in
\n     respect of the vessel ‘Tortugas’?\n<\/p><\/blockquote>\n
     3. Whether, on the facts and in the
\n     circumstances  of\t the  case,  the
\n     Tribunal was  justified in\t law  in
\n     deleting\tthe    enhancement    of
\n     Rs.97,547\/-  to  the  total  income
\n     made  by  the  Appellate  Assistant
\n     Commissioner on  account  of  wrong
\n     deduction\t     af\t      unabsorbed
\n     depreciation allowed  by the Income
\n     Tax Officer?”<\/p><\/blockquote>\n
     The Calcutta  High Court  answered Question No.1 in the
\nnegative,i.e.,in favour\t of the\t Revenue. Question  No.2 was
\nanswered in the affirmative,i.e., in favour of the assessee,
\nwhile Question\tNo.3 was  answered in  the  negative,i.e.,in
\nfavour of  the Revenue\tand  against  the  assessee.  On  an
\napplication  filed   by\t the  assessee\tfor  issuance  of  a
\ncertificate  under   Section  66A(2),\tthe  High  Court  [a
\ndifferent Division  Bench] issued  the certificate observing
\nthat the  case raises  certain important  questions  of\t law
\nwhich require  to be considered by this Court. The questions
\nso indicated are:\n<\/p>\n
     “The   issue   involved   in   this
\n     reference\t     concerns\t     the
\n     interpretation of\tthe circular and
\n     the  instructions\t issued\t by  the
\n     Central Board  of Revenue vis-a-vis
\n     the applicability of Rule 33 of the
\n     Income  Tax   Rules.  The\t answers
\n     involve  the   question  of   vital
\n     importance for  the  assessment  of
\n     shipping  companies   up\tto   the
\n     assessment\t year  1976-77\tand  how
\n     Section 44-B  would be  applicable.
\n     The  reference   dealt   with   the
\n     question whether a shipping company
\n     is entitled  to depreciation  under
\n     section 10(2)(vi) of the Income Tax
\n     Act,   1961    in\t view\tof   the
\n     instructions issued  by the Central
\n     Board of  Revenue.\t This  reference
\n     was also involved with the question
\n     whether the  assessee would  become
\n     disentitled to such depreciation in
\n     view  of\tthe  said   instructions
\n     contained in  the circular\t of  the
\n     Central Board  of\tRevenue.  It  is
\n     true that\tthe scope  and effect of
\n     the circular of this type have been
\n     considered by  the Supreme Court in
\n     the case  of Ellermen Lines Ltd. v.
\n     Commissioner  of\tIncome\tTax,  82
\n     I.T.R. 913\t and Navnitlal Javeri v.
\n     Sen 56 I.T.R. 198, but the question
\n     here is  to what  extent a circular
\n     which  curtail  the  right\t of  the
\n     assessee under  the Act or the Rule
\n     can be  given effect  to as against
\n     the assessee.  It is  true, as  was
\n     noted by  the Supreme  Court in the
\n     cases referred  to herein before as
\n     also  in\tthe  instant  case  that
\n     circulars merely  provide a  method
\n     of the  application of Rule 33, but
\n     by providing  that\t method\t if  the
\n     circular attempts\tto  curtail  the
\n     right  to\t depreciation\tby   the
\n     assessee then  the jurisdiction  of
\n     such  circulars  to  curtail  right
\n     granted either  by the  Act or  the
\n     Rule  framed   by\tthe   Act  would
\n     require consideration. Further more
\n     also on  the interpretation  of the
\n     circular  there  is  a  substantial
\n     question involved\t– what\tdoes the
\n     expression\t   ‘fleet’     in    the
\n     instructions issued  by the Central
\n     Board  of\tRevenue\t mean.\tFor  the
\n     aforesaid reasons\twe  are\t of  the
\n     opinion  that  this  case\tinvolves
\n     substantial and important questions
\n     of\t law   which   require\t to   be
\n     considered by the Supreme Court.”
\n     The appellant-assessee is a Norwegian Shipping Company.\n<\/p><\/blockquote>\n
The assessment\tyear concerned\tis  1958-59  for  which\t the
\naccounting year\t was the  calender year\t 1957. The  relevant
\nfacts, as  stated in the judgment of the High Court, are the
\nfollowing:\n<\/p>\n
(i) Instead  of furnishing the annual accounts for its world
\nbusiness for  the  Assessment  Year  1958-59,  the  assessee
\nfurnished separate  complete annual  accounts for its Indian
\ntrade, that is to say, for all-round voyages of each ship to
\nand from the Indian Ports. The assessment was made under the
\nthird method  contained in  Rule 33 of the Indian Income Tax
\nRules 1922  and\t the  Instructions  issued  thereunder.\t The
\nprofits that  were brought  to tax  ultimately were  the net
\nIndian profits\tof each ship employed in the Indian trade in
\nthe Accounting Year 1957.\n<\/p>\n
(ii) Following\tthe Instructions  aforementioned, the Income
\nTax Officer disallowed depreciation of eight ships mentioned
\nin his\torder on  the ground  that the\tsaid  ships  in\t the
\nassessee’s fleet were of more than twenty years.\n<\/p>\n
(iii)  There   was  an\t unabsorbed  depreciation  of  about
\nRs.3,31,493\/ – in the Assessment Year 1953-54. An amount
\nof Rs.2,49,093\/-  was set-off  against the assessee’s income
\nfor the Assessment Year 1957-58. The unabsorbed depreciation
\nof Rs.97,547\/-\tfor the Assessment Year 1953-54 pertained to
\nseven ships,  which did\t not come to India in the accounting
\nyear relevant  to the  Assessment Year 1958-59. In the books
\nof the\tassessee, the said sum of Rs.97,547\/- was shown as a
\nbusiness loss  brought forward\tfrom the  earlier years. The
\nIncome Tax  Officer allowed the assessee to set-off the said
\namount against\tthe profits for the accounting year relevant
\nto Assessment  Year 1958-59.  [We are  not stating the facts
\nrelating to  Question No.2 since it was answered by the High
\nCourt in  favour of  the assessee  and because\tthere is  no
\nappeal by the Revenue against it.]\n<\/p>\n
(iv)  On   appeal,  the\t  Appellate  Assistant\tCommissioner
\naffirmed the  order of\tthe Income  Tax Officer.  Before the
\nAppellate Assistant  Commissioner, the\tIncome\tTax  Officer
\ncontended that\tallowing the  set-off of  Rs.97,547\/- by him
\nwas a  mistake. the  assessee accepted\tthe said contention.
\nAccordingly, the  Appellate Assistant  Commissioner enhanced
\nthe assessment by disallowing the said sum of Rs.97,547\/-.\n<\/p>\n
(v) The assessee appealed to the Tribunal where it contended
\nthat  the   Instructions  insofar   as\tthey   provide\t for
\ndisallowance of\t depreciation on the said eight ships [which
\ndid not come to India during the accounting year relevant to
\nAssessment Year\t 1958-59] were\tultra vires  proviso (c)  to
\nSection 10(2)(vi) of the Act and Rule 8 of the Indian Income
\nTax Rules,  1922.  It  contended  that\tit  is\tentitled  to
\ndepreciation  in  respect  of  all  these  ships  under\t the
\nprovisions contained  in Section  10(2)(vi) proviso  (c) and
\nRule 8.\t It submitted  further\tthat  the  words  “company’s
\nfleet” occurring  in Instructions  were\t referable  only  to
\nthose ships  of the  assessee which  were  employed  in\t its
\nIndian trade.\n<\/p>\n
     The Tribunal  did not  go in  the question\t whether the
\nInstructions  were  ultra  vires  the  statutory  provisions
\naforesaid but held that the Appellate Assistant Commissioner
\nhas misunderstood  the said  Instructions.  It\tallowed\t the
\nassessee’s appeal on the following -reasoning:\n<\/p>\n
     “When the\tdepreciation is\t allowed
\n     under the\tIndian Income-tax Act it
\n     follows  that   in\t the  matter  of
\n     calculating the  overall  or  total
\n     depreciation  for\tthe  purpose  of
\n     proviso (c)  to  section  10(2)(vi)
\n     one has  also to  take into account
\n     only such\tdepreciation as has been
\n     actually allowed  under the  Indian
\n     Income-tax Act.  As  such\tare  not
\n     concerned\t with\t any\tnotional
\n     depreciation or  depreciation which
\n     might have\t been provided,\t in  the
\n     accounts other  than those relevant
\n     for the purpose of assessment under
\n     the Indian Income-tax Act. This, to
\n     our mind,\tseems  to  be  the  most
\n     patent and\t obvious  interpretation
\n     of Section\t 10(2)(vi). In\tthe case
\n     of the  present assessee  which  is
\n     assessed  on   the\t  round\t  voyage
\n     method,  a\t particular  ship  might
\n     have called at the Indian port some
\n     25 years  back and\t may be employed
\n     for the  company’s Indian trade for
\n     the second\t time only  in the  26th
\n     year. That\t does not  mean that the
\n     company will  not\tbe  entitled  to
\n     depreciation  in\tthe  26th   year
\n     because in the intervening 25 years
\n     the ship was evidently not used for
\n     purpose of\t the  round  voyage  via
\n     India and\tas such\t no depreciation
\n     had been  allowed under  the Indian
\n     Income-tax Act except for the first
\n     year. *** *** ****
\n     In the  case of  a foreign shipping
\n     company like  that of the appellant
\n     company there  may be  ships  which
\n     are borne more than 20 years on the
\n     total world  fleet and  many of the
\n     ships might  not have  been used at
\n     all in  the Indian Waters but there
\n     is no  prohibition under the Indian
\n     Income-tax\t Act   against\tallowing
\n     depreciation on  such ships  simply
\n     on the  ground that  the  ship  had
\n     formed  a\tpart  of  the  company’s
\n     fleet -for\t more than 20 years. Was
\n     therefores hold  in favour\t of  the
\n     appellant\t company    viz.    that
\n     depreciation allowance  as provided
\n     in Rule  8 should be allowed on all
\n     ships employed  in connection  with
\n     the company’s  Indian trade subject
\n     only  to\tthe  limitation\t imposed
\n     under  proviso   (c)   to\t section
\n     10(2)(vi).”<\/p><\/blockquote>\n
     The Tribunal  further held\t that the  said Instructions
\nwhich may  have been  valid when  issued, became obsolete in
\nview of\t the introduction of Section 24(2) in the Act by the
\nFinance Acts  1955. It\tfound that  inasmuch as the assessee
\ncarried on the same business in the relevant assessment year
\nas was\tcarried on  in\tthe  previous  relevant\t years,\t the
\nassessee is  entitled to set-off the unabsorbed depreciation
\nof Rs.\t97,547\/- against  the profits of the Assessment Year
\n1958-59.\n<\/p>\n
     We may now set out the opinion of the High Court on the
\nthree questions\t referred. On  the first  question, the High
\nCourt held  that the  Instructions are not inconsistent with
\nthe provisions\tof the\tAct or\tthe Rules.  They provide for
\nassessment of  total income  of a  foreign shipping  company
\nwhere it  furnishes annual  accounts for  the whole  of\t its
\nbusinesss Indian  and foreign, as well as where it furnishes
\nthe accounts  only  in\trespect\t of  its  Indian  trade.  By
\nfollowing the  latter method,  the foreign  shipping company
\ncannot get  depreciation allowance  more than it is entitled
\nto in  the former  method. The Instructions are clear. There
\nis no  ambiguity therein.  Depreciation on a ship is allowed
\nonly when  it is actually employed in the trade or business.
\nFrom Appendix-A\t to Rule 8, it appears that for the purposes
\nof depreciation allowance, the\tLegislature has contemplated
\ntwenty years  to be  the normal expectation of the life of a
\nship.  The  order  passed  by  the  Income  Tax\t Officer  is
\nconsistent with the said provisions. The Instructions merely
\nclarify the  rule position.  Whether statutory\tor not, they
\nare binding  upon the  Income Tax  authorities\thaving\tbeen
\nissued under sub-section (8) of Section 5 of the Act.\n<\/p>\n
     On Question  No.3, the High Court held that inasmuch as
\nships in  respect of  which the\t unabsorbed depreciation was
\nsought to  be carried  forward did  not come to India during
\nthe accounting\tyear relevant to Assessment Year 1958-59 the
\nsaid amount  of Rs.97,547\/-  cannot be\tset-off against\t the
\nprofits of the said assessment year.\n<\/p>\n
     [We are  not setting  out the opinion of the High Court
\non Question  No.2, since  the said  question is not in issue
\nbefore us.]
\n     For a  proper appreciation\t of  the  questions  arising
\nherein, it  is necessary  to set out the relevant provisions
\nof law.\n<\/p>\n
     Sub-section (8)  of Section  5 of the Act empowered the
\nCentral Board  of Revenue  to issue orders, instructions and
\ndirections which  were binding upon all officers and persons
\nemployed in  the execution  of the Act. The sub-section read
\nas follows:\n<\/p>\n
     “(8)  All\t Officers  and\t persons
\n     employed in  the execution\t of this
\n     Act shall\tobserve and  follow  the
\n     orders, instructions and directions
\n     af the Central Board of Revenue:\n<\/p><\/blockquote>\n
\t  Provided    that    no    such
\n     orders,instructions  or  directions
\n     shall be  given so\t as to interfere
\n     with   the\t   discretion\tof   the
\n     Appellate Assistant Commissioner in
\n     the  exercise   of\t his   appellate
\n     functions.”\n<\/p><\/blockquote>\n
The provision  is clear.  It requires no elaboration. It is,
\nhowever, evident  that the  power so  conferred\t on  Central
\nBoard of Revenue has to be exercised for the purposes of and
\nwithin the four corners of the Act.\n<\/p>\n
     Sub-section (2)  of Section  10 provided the allowances
\nto be  made while  ascertaining the  profits  and  gains  of
\nbusiness, profession  and  vocation.  Clause  (vi)  of\tsub-
\nsection\t (2)   provided\t for   depreciation  on\t  buildings,
\nmachinery, land\t or furniture  being  the  property  of\t the
\nassessee. Proviso  (c) appended to clause (vi) provided that
\n“the aggregate\tof all allowances in respect of depreciation
\nmade under  this clause\t and clause  (vi-a) or under any Act
\nrepealed hereby,  or under  the Indian Income-tax Act, 1886,
\nshall, in  no case, exceed the original cost to the assessee
\nof the buildings, machinery, plant or furniture, as the case
\nmay be”.\n<\/p>\n
     Rule 33 of the Indian Income Tax Rules read as follows:
\n     “33.  In  any  case  in  which  the
\n     Income-tax Officer\t is  of\t opinion
\n     that  the\t actual\t amount\t of  the
\n     income, profits  or gains\taccruing
\n     or arising\t to any\t person residing
\n     out  of   the  taxable  territories
\n     whether  directly\t or   indirectly
\n     through  or   from\t  any\tbusiness
\n     connection\t   in\t  the\t taxable
\n     territories or  through or from any
\n     property\t  in\t the\t taxable
\n     territories, or through or from any
\n     asset or  source of  income in  the
\n     taxable territories,  or through or
\n     from any money lent at interest and
\n     brought\tinto\t the\t taxable
\n     territories  in  cash  or\tin  kind
\n     cannot be\tascertained, the  amount
\n     of such  income, profits  or  gains
\n     for the  purposes of  assessment to
\n     income-tax\t may  be  calculated  on
\n     such percentage  of the turnover so
\n     accruing or  arising as the Income-\n<\/p>\n
     tax  Officer  may\tconsider  to  be
\n     reasonable, or  on an  amount which
\n     bears the\tsame proportion\t to  the
\n     total profits  of the  business  of
\n     such  person  (such  profits  being
\n     computed  in  accordance  with  the
\n     provisions of the Indian Income-tax
\n     Act) as the receipts so accruing or
\n     arising bear  to the total receipts
\n     of the  business, or  in such other
\n     manner as\tthe  Income-tax\t Officer
\n     may deem suitable.”\n<\/p>\n
     Now, coming  to the  Instructions issued under Rule 33,
\nand which are the main subject-matter of debate herein, they
\nread thus:\n<\/p>\n
     “This Rule\t (Rule 33)  provides the
\n     manner of\tascertaining the income,
\n     profits or\t gains of a non-resident
\n     person, when  the actual  amount of
\n     his  income,   profits   or   gains
\n     chargeable to  tax in British India
\n     cannot be arrived at.\n<\/p><\/blockquote>\n
\t  In respect of foreign shipping
\n     companies carrying\t on business  in
\n     British India  the following method
\n     will be followed for the purpose of
\n     calculating   their   income   from
\n     shipping  business\t in  respect  of
\n     assessment for the year 1939-40 and
\n     for earlier years:\n<\/p><\/blockquote>\n
     i) If  a company  furnishes  annual
\n     accounts  for   the  whole\t of  the
\n     business, Indian  and foreign,  the
\n     second method  provided by\t Rule 33
\n     will   reasonably\t  be\tapplied.
\n     Depreciation   has\t  only\t to   be
\n     considered\t  in   calculating   the
\n     world-profits.  These   are  to  be
\n     calculated according  to the Indian
\n     Income tax\t Act. Profits calculated
\n     according to the United Kingdom Act
\n     will,  therefore,\trequire\t certain
\n     adjustments.  Deductions  permitted
\n     in\t the   United  Kingdom\tbut  not
\n     permitted in Indian will have to be
\n     added    back     and    deductions
\n     permissible  in   India   but   not
\n     permissible in  the United\t Kingdom
\n     will have\tto be  allowed.\t If  any
\n     company, however,\tprefers to claim
\n     the  depreciation\tallowed\t by  the
\n     United\t Kingdom      Income-tax
\n     authorities, the  Commissioners  of
\n     Income-tax may  adopt that\t figure.
\n     Otherwise, depreciation  will  have
\n     to be  calculated according  to the
\n     Indian Rules.  What follows applies
\n     to the  calculated of  depreciation
\n     according to  the Indian rules. For
\n     this    purpose,\t  a\tcomplete
\n     depreciation  record   has\t to   be
\n     maintained\t for  the  entire  fleet
\n     Depreciation begins to run from the
\n     first year\t in which the company is
\n     assessed  in  India  that\tis,  the
\n     first year\t in which its profits or
\n     loss  were\t  determined   for   the
\n     purpose of\t deciding whether it was
\n     liable   to    Indian   Income-tax.
\n     Unabsorbed depreciation  i.e.,  any
\n     balance   of   depreciation   which
\n     cannot be allowed in any year owing
\n     to the profits not being sufficient
\n     to\t  cover\t   the\t  full\t  amount
\n     permissible under\tthe Indian rules
\n     will be carried forward and allowed
\n     as far  as possible  in calculating
\n     the world-profits\taccording to the
\n     Indian method in the following year
\n     and  if   necessary  in  subsequent
\n     years  provided   that   unabsorbed
\n     depreciation   for\t   1938-39   and
\n     earlier years  cannot  be\tset  off
\n     against an\t assessment for\t 1939-40
\n     or any subsequent year.\n<\/p><\/blockquote>\n
\t  The proportion Indian receipts
\n     to total receipts is applied to the
\n     world profits  calculated according
\n     to the  Indian method (if there are
\n     any such profits) and the result is
\n     the Indian income liable to tax. No
\n     further  deduction\t is  permissible
\n     from the  amount thus arrived at on
\n     account of depreciation (unabsorbed
\n     or otherwise) or anything else. The
\n     due proportion  of\t all  allowances
\n     permissible  is  automatically  set
\n     off against  the Indian  profits by
\n     the above method.\n<\/p><\/blockquote>\n
\t  This\t method\t   is\t equally
\n     applicable whether\t a company works
\n     out the  profits for each voyage or
\n     follows any other method of account
\n     provided that  it prepares complete
\n     annual  accounts\tfor  the   whole
\n     businesss Indian  and foreign,  and
\n     furnishes\tthe  accounts  of  gross
\n     receipts, Indian and foreign.
\n\t  Some\tlines\tdo  not\t furnish
\n     complete annual  accounts for their
\n     world business.  They keep separate
\n     complete annual  accounts for their
\n     Indian trade  that is,for all round
\n     voyage to\tand from  Indian  Ports.
\n     The proper\t course is then to apply
\n     the method\t just described treating
\n     the profits of the Indian trade and
\n     the gross\treceipts of  the  Indian
\n     trade  as\t though\t they  were  the
\n     world-profits   and    the\t  world-
\n     receipts respectively. In fact, the
\n     business  other   than  the  Indian
\n     trade is ignored.\n<\/p><\/blockquote>\n
     ii) A  difficulty sometimes  arises
\n     in such  cases owing  to  the  fact
\n     that  the\tships  employed\t in  the
\n     Indian trade  are constantly  being
\n     changed.  Unless\tUnited\t Kingdom
\n     depreciation   is\t  accepted    as
\n     indicated\tabove,\t a  depreciation
\n     record will  have to  be  kept  for
\n     every ship\t employed at any time in
\n     the Indian trade. Depreciation must
\n     be allowed on each ship employed in
\n     the Indian\t trade in  a given  year
\n     and  the\tallowance  must\t  be   a
\n     proportion\t of   the  annual   rate
\n     calculated with  reference\t to  the
\n     number of\tdays spent in the Indian
\n     trade whether at sea or in harbour.
\n     Any unabsorbed  depreciation in any
\n     year must\tbe distributed among the
\n     ships in  the Indian  trade in that
\n     year proportion to the capital cost
\n     of\t  each\t  and\tthe   unabsorbed
\n     depreciation’thus allotted\t to  any
\n     ship can  only be\tallowed\t in  any
\n     subsequent year  against  the  same
\n     ship.\n<\/p><\/blockquote>\n
\t  The allowance should cease:\n<\/p><\/blockquote>\n
     a) on  ships which were included in
\n     the fleet\tin  the\t first\tyear  in
\n     which the company becomes liable to
\n     assessment in  India  (irrespective
\n     of whether it was actually found to
\n     have a  taxable income in that year
\n     or not),  after the  twentieth year
\n     beginning with that year;\n<\/p><\/blockquote>\n
     b) on  ships subsequently\tadded to
\n     the  company’s  fleet,  after  they
\n     have been borne on the fleet for 20
\n     years.\n<\/p><\/blockquote>\n
\t  In both  cases the  period may
\n     be extended  proportionately  where
\n     the United\t Kingdom depreciation is
\n     allowed in\t calculating the profits
\n     of the  Indian trade which take the
\n     place as  already explained  of the
\n     world profits.\n<\/p><\/blockquote>\n
\t  Obsolescence cannot be allowed
\n     in these cases.\n<\/p><\/blockquote>\n
\t  British  Shipping  Companies–
\n     Assessment\t  of:\twhen   assessing
\n     British Shipping  Companies,  –the
\n     Income-tax Officer\t should accept a
\n     certificate granted  by  the  Chief
\n     Inspector of  Taxes in  the  United
\n     Kingdom stating  (1) the  ratio  of
\n     the  profits   of\tany   accounting
\n     period as computed for the purposes
\n     cf the  United  Kingdom  income-tax
\n     computed\twithout\t   making    any
\n     allowance for  wear and tear to the
\n     gross  earnings  of  the  Company’s
\n     whole fleet, and their ratio of the
\n     United Kingdom  allowance for  wear
\n     and tear  to the  gross earnings of
\n     the whole\tfleets or  (2) the  fact
\n     that there\t were no  such\tprofits.
\n     The expression  ‘gross earnings’ of
\n     the company’s whole fleet means the
\n     total  receipts   of  the\tShipping
\n     Company  excepting\t  only\treceipts
\n     from non-trading  sources\tsuch  as
\n     income from investments. Assessment
\n     for 1940-41  onwards  =  The  above
\n     instructions   should    also    be
\n     followed\tin    respect\tof   the
\n     assessment\t of   foreign\tshipping
\n     companies\tfor   1940-41\tonwards.
\n     These instructions inter alia allow
\n     a\t  foreign    shipping\t company
\n     furnishing annual\taccounts for the
\n     whole of  its business.  Indian and
\n     foreign to\t adopt the U.K. wear and
\n     tear  allowance   in  lieu\t of  the
\n     depreciation  allowance  under  the
\n     Indian  Income-tax\t  Act  for   the
\n     purpose of\t the computation  of its
\n     income  in\t  accordance  with   the
\n     second method  provided by Rule 33,
\n     and also  allow a\tBritish shipping
\n     company to\t elect to be assessed on
\n     the basis\tof a  ratio  certificate
\n     granted  by  the  U.K.  authorities
\n     regarding the  income or  loss  and
\n     the wear and tear allowance.”<\/p><\/blockquote>\n
\t    [Quoted from the Paper Book]
\n     It would  be  evident  from  a  perusal  of  the  above
\nprovisions that\t Section  10(2)(vi)  does  not\tspecifically
\nprovide for  allowance\tof  depreciation  on  foreign  ships
\ntrading with  India. Rule  33  also  does  not\tspecifically
\nprovide for  the situation  except that\t the last portion of
\nthe rule  empowers the\tIncome Tax  Officer to arrive at the
\nactual amount  of  incomes  profits  or\t gains\taccruing  or
\narising to  any person\tresiding outside taxable territories
\nin such\t other\tmanner\tas  he\tdeems  suitable\t where\tsuch
\nascertainment cannot  be done  according to  the  first\t two
\nmethods indicated  therein. It\tis precisely  to provide for
\ncertain specific  situations that  the Central\tBoard issued
\nthe aforesaid  Instructions under  Rule 33. The Instructions
\nspecifically lay  down the  method and\tthe manner  in which
\ndepreciation has  to be\t worked out  on\t ships\towned  by  a
\nforeign shipping line carrying on business in British India.
\nIn this\t case, it is admitted that the appellant-company did
\nnot prepare and furnish the complete annual accounts for its
\nentire businesss  Indian and  foreign, along with an account
\nof its\tgross  receipts,  Indian  and  foreign.\t It  kept  a
\nseparate annual\t account in  respect of its Indian trade and
\nsubmitted the  same  to\t the  Income  tax  authorities.\t The
\nInstructions provide  inter alia  for such  a  situation  as
\nwell. The  Instructions issued\tby the\tCentral Board  under
\nRule 33\t merely elucidate  and elaborate the manner in which
\nthe business income of such foreign shipping lines are to be
\nascertained.  These   Instructions  are\t  relatable  to\t the
\nlast\/third  alternative\t  provided  by\t Rule  33.  We\tare,
\ntherefore,  in\tagreement  with\t the  High  Court  that\t the
\naforesaid Instructions\tdo not run counter to Rule 33 or for
\nthat  matter   to  Section   10(2)(vi).\t  Evidently,   these
\nInstructions were  issued in  view of the problems faced and
\nexperience gained  by the  department and to meet situations
\nnot expressly provided for by the Act or the Rules. They are
\nin the\tnature of guidance to the assessing officers. We are
\nalso in\t agreement with the High Court that the Instructions
\nare clear  and unambiguous  and that  the Income Tax Officer
\nwas bound  to follow  them.  The  Instructions\tspecifically
\nprovided that  depreciation must  be allowed  on  each\tship
\nemployed in  the Indian\t trade in  a given year and that the
\nallowance must be a proportion of the annual rate calculated
\nwith reference\tto the\tnumber of  days spent  in the Indian
\ntrade whether  at sea  or in  harbour. They further provided
\nthat  any  unabsorbed  depreciation  in\t any  year  must  be
\ndistributed among  the ship in the Indian trade in that year
\nin proportion  to the capital cost of each ship and that the
\nunabsorbed depreciation\t thus allotted to many ship can only
\nbe allowed in any subsequent year against the same ship. The
\nInstructions also  provide clearly  that the allowance shall
\ncease on  ships after  the expiry of twenty years. It is not
\ndisputed by  the learned  counsel for the assessee before us
\nthat the  Instructions have  been  correctly  understood  or
\nfollowed by  the Income Tax Officer. The complaint rather is
\nthat the  Instructions themselves  are inconsistent with the
\nstatutory  provisions.\t Since\twe   have  held\t  that\t the
\nInstructions are not inconsistent with nor can be said to be
\noutside the purview of Rule 33 read with Section 5(8) of the
\nAct, no\t further question arises. Accordingly, we affirm the
\nanswer given by the High Court to Question No.1.\n<\/p>\n
     So far as Question No.3 is: concerned, the answer to it
\nalso  depends\tupon  the   validity  and  applicability  of
\nInstructions aforesaid.\t It has been found by the High Court
\nthat the  seven ships,\tthe unabsorbed\tdepreciation whereof
\nwas sought  to be set-off in the Assessment Year 1958-59 did
\nnot come  to India  in the  Accounting Year 1957 relevant to
\nthe Assessment\tYear 1958-59. According to the Instructions,
\nthe unabsorbed\tdepreciation in respect of a particular ship
\ncan only  be allowed  against  that  particular\t ship  in  a
\nsubsequent year\t provided that it was employed in the Indian
\ntrade in  the subsequent  year. Accordingly,  we affirm\t the
\nanswer given by the High Court to Question No.3 as well.\n<\/p>\n
     The learned  counsel for  the appellant  brought to our
\nnotice the subsequent decision of the Calcutta High Court in
\nCommissioner of Income tax, West Bengal v. Swedish East Asia
\nCompany Limited\t [(1981) 127  I.T.R.148] where\tthe Division
\nBench criticized  certain observations in the judgment under
\nappeal with respect to the scope of the power conferred upon
\nCentral Board  under Section  5(8). Since  we have held that
\nthe Instructions  concerned herein  are relatable to Rule 33
\nit is  not necessary  to go  into the  question whether\t the
\npower conferred upon the Central Board to issue instructions
\ncan be employed for issuing instructions contrary to the Act
\nand the\t Rules. Obviously  it can’t  be so  used  an  aspect
\nalready dealt  by us  hereinabove. The\tlearned counsel also
\nbrought to our notice that the decision of the Calcutta High
\nCourt in Swedish East Asia Company Limited has been followed
\nby the\tBombay High  Court in  Commissioner of Income Tax v.
\nMinerva Maritime Corporation<\/a> [(1985) 155 I.T.R.258]. For the
\nreasons given  above, this  submission does  not  carry\t the
\nappellant’s case any further.\n<\/p>\n
     Now, a  word about the order of the High Court granting
\ncertificate. The  order granting  certificate raises certain
\nquestions which\t do not\t directly arise from the judgment of
\nthe High  Court. The  order granting  certificate  seems  to
\nassume that  the  Instructions\tare  inconsistent  with\t the
\nstatutory provisions  which assumption,\t in  our  respectful
\nopinion, is  not warranted,  as has  been  indicated  by  us
\nhereinabove.\n<\/p>\n
     For  the\tabove  reasons,\t the  appeal  fails  and  is
\ndismissed with\tcosts. Advocate’s  fee Rupees  ten  thousand
\nconsolidated.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S Wilh Wilhelmsen vs Commissioner Of Income Tax,West … on 9 July, 1996 Equivalent citations: JT 1996 (6), 167 1996 SCALE (5)43 Author: B Jeevan Reddy Bench: Jeevan Reddy, B.P. (J) PETITIONER: M\/S WILH WILHELMSEN Vs. RESPONDENT: COMMISSIONER OF INCOME TAX,WEST BENGAL DATE OF JUDGMENT: 09\/07\/1996 BENCH: JEEVAN REDDY, B.P. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-10556","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S Wilh Wilhelmsen vs Commissioner Of Income Tax,West ... on 9 July, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-wilh-wilhelmsen-vs-commissioner-of-income-taxwest-on-9-july-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Wilh Wilhelmsen vs Commissioner Of Income Tax,West ... on 9 July, 1996 - 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