Gammon India Ltd. vs Commissioner of Income Tax

Dr. Mrs. Pratibha Upasani, J.—By this reference u/s 256(1) of the Income Tax Act, 1961, which is at the instance of the assessee, i.e., Gammon India Ltd., the following question has been referred to this court :

"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that ''pontoons'' used for transporting men and material to site on sea do not fall within the definition of ''ships'' and that the appellant was eligible for development rebate only at 15 per cent. instead of at 40 per cent. as allowed by the Commissioner of Income Tax (Appeals) ?"

The reference is for the assessment year 1976-77. The necessary relevant facts which give rise to this question are as under :

The assessee is a public limited company, doing the business of civil engineers and contractors. The contracts executed during the accounting year concerned were construction of bridges, cooling towers, reservoirs, etc. In the proceedings before the Income Tax Officer, the company claimed that they were entitled to initial depreciation in respect of plant and machinery added by them during the accounting year concerned under the provisions of section 32(1)(vi). The total claim made by the assessee-company was Rs. 9,96,898 on the new plant and machinery added during the year. The Income Tax Officer was of the opinion that, as the assessee-company was not engaged in the business of manufacture or production of any one or more of the articles or things specified in the items in the Ninth Schedule, the assessee was not entitled to the initial depreciation u/s 32(1)(vi) of the Income Tax Act, 1961, as claimed.

The assessee-company appealed to the Commissioner (Appeals) who accepted the claim of the assessee-company. Submissions were made on behalf of the assessee that a similar matter had come up for consideration in the earlier years and the attention of the Commissioner (Appeals) was invited to the order of the Tribunal for the assessment year 1965-66. It was pointed out by the assessee that, in that order, the Tribunal had held that the company was engaged in the business of construction. On this basis, the claim of the assessee was allowed by the Commissioner (Appeals).

The Department (Revenue) appealed against this order of the Commissioner (Appeals) and the matter came up before the Tribunal. The Tribunal reversed the finding of the Commissioner (Appeals) and held that in order to obtain initial depreciation, the company should "construct", "manufacture" or "produce" any of the articles mentioned in the Ninth Schedule. It also held that the word "construction" found in the provision should not be used disjunctively from the expression "manufacture or production", and that these words are to be used against specific items mentioned in the Ninth Schedule. The Tribunal also gave a finding that in respect of some of the items, the word "construction" was a more happy usage than the words "manufacture or production". It also pointed out that in the Ninth Schedule, item No. 15 was "ship" and item No. 16 was "aircraft". It was pointed out by the Tribunal that in common parlance, it is seen as "construction" of ships and "construction" of aircraft, and that the same expression was used in the definition of "industrial company" in the Finance Act. The Tribunal also referred to the case of Commissioner of Income Tax Bombay City-I Vs. N.U.C. Private Ltd., , and gave a finding that the word "construction" could not be isolated and applied to the assessee as their business was that of construction of bridges and reservoirs. Thus, giving this finding, the order of the Commissioner (Appeals) was reversed by the Tribunal, and the order of the Income Tax Officer was restored. From this finding, the above referred question arose, which was referred to the High Court.

It was mentioned that the assessee was engaged in the construction of bridges, etc., and that for this purpose, the assessee used pontoons. Admittedly, these pontoons carried men and material to the spot where the bridges were constructed. Development rebate u/s 33 of the Income Tax Act, 1961, was claimed by the company on the ground that pontoons were "ships" for the purpose of section 33. The question, therefore, which is to be decided by us is, whether a pontoon is a ship within the meaning of the expression used in section 33, to be entitled to claim development rebate as per the provisions of section 33.

We have heard both counsel at length on the question whether a pontoon is to be considered as ship or not. We have also carefully considered the order of the Tribunal. We have also seen the dictionary meaning of the word "pontoon" and the word "ship". It was argued on behalf of the Revenue that a pontoon is a flat-bottomed vessel, used to support a bridge, a low vessel, carrying men and material for work at sea or on rivers, and that the assessee-company was using them in the construction of bridges and that the pontoon was more or less a floating platform from which the men could work. It was also pointed out by the Revenue that in the earlier claim of the company for the assessment year 1964-65, the Tribunal was considering whether a barge could be considered as a ship within the meaning of the expression in section 33 of the Income Tax Act, 1961, and that the question whether a pontoon could be considered a ship never arose in that matter.

Learned counsel appearing for the assessee argued that Appendix I under the heading "IV-ships" includes ocean going ships, fishing vessels, speed boats, and, therefore, they should also include a pontoon. He also relied upon the judgment of the Gujarat High Court in Commissioner of Income Tax Vs. Shri Digvijay Cement Company Ltd., , wherein the Gujarat High Court had held that ships included pontoons for the purpose of rule 5 of the Income Tax Rules and that they were entitled to higher rate of rebate. With respect, we are not inclined to agree with the view expressed by the Gujarat High Court.

It is to be borne in mind that the word "ship" has not been defined anywhere in the Income Tax Act, 1961, or in the Rules made thereunder. Therefore, we necessarily have to interpret the said word "ship" as per the natural meaning which it conveys. In short, we must understand the word "ship" in its natural sense and as it is generally understood. We may also refer to the definition given to this word "ship" in the General Clauses Act, 1897. Section 3(55) of the General Clauses Act gives an inclusive definition of the word "ship" which is as follows :

"''ship'' shall include every description of vessel used in navigation not exclusively propelled by oars."

It means that ship means all types of vessels which have one common factor or feature and this common factor or feature is that it is used in navigation. Therefore, any vessel used in navigation can be called a ship. The most important and significant word, therefore, is "navigation", since navigation is the crux of the whole thing. We, therefore, have to discuss and find out what is meant by "navigation". The Concise Oxford Dictionary defines the word "navigation" as, "communication by canals and rivers, voyage". The meaning of the verb "navigate" is given as "to sail over or up or down (sea, river)". Chamber''s Dictionary says that to navigate means "to conduct or manage a ship in sailing or flying" and "navigation" is "travel or traffic by water or air". So, conveying goods, men and material from one place to another is the sine qua non for being qualified as ship. If a vessel leaves, say, point A for destination point B, it can be well said that it has navigated, and that, its job for that trip is over. It is thereafter of no further use, till it is again put for the use in the water for navigation. Thus, "navigation", necessarily, unmistakably, and invariably means "communication" through water.

Now, coming to the facts of the present case at hand, the essential difference between all water going vessels and a pontoon used by the assessee, can be pointed out. These pontoons are not used by the assessee to go from one place to another place alone. Its main use is that it serves the purpose of a platform, on which the work of constructing bridges can be undertaken. Admittedly, the assessee-company''s main job is construction of bridges. The pontoon''s usefulness is that it gives for the workmen a firm place at a work-spot. If these pontoons had not been there, the workers would have difficulty in carrying out the construction work in water. For a pontoon, moving in water is incidental to reaching the spot where this work of construction is to be carried out. Its usefulness commences after it reaches that work-spot. In contradistinction to the pontoon, for other vessels, their main and indeed the only use is to transport across the water. These vessels navigate from point A to some other point across the water. Thus, they navigate in the fullest sense of the word. Pontoon, on the other hand, is nothing but a platform for work. Just because it floats on water, it cannot be described as a ship. Pontoons are platforms used for working in the water and nothing else. Many things float in the water, but just because they float, they cannot be described as ship.

Thus, in our considered opinion, "navigation" is a distinguishing point. We, therefore, do not accept the contention of learned counsel appearing for the assessee-company that pontoons are ships and, therefore, the assessee-company is entitled to claim initial depreciation u/s 32(1)(vi). Even in the Gujarat judgment, on which learned counsel for the assessee-company heavily relied, the Income Tax Officer therein, was of the opinion that pontoons could not be treated as ships, since they were incapable of movement by themselves because they had no engines. Giving this finding, he allowed development rebate at the rate of 25 per cent. instead of 40 per cent., treating pontoons as "plant". Even the Division Bench of the Gujarat High Court has observed in its judgment that "it is, therefore, difficult to consider pontoons as ships in its ordinary literal sense ...". Saying thus, the Division Bench went on to consider whether pontoons could be considered as ships under the Income Tax Rules. The Revenue was resisting the claim of the assessee-company, namely, Shri Digvijay Cement Co. Ltd., on the ground that the pontoons by themselves were motionless since they were not self-propelled. This submission of the Revenue did not impress the Appellate Assistant Commissioner. While rejecting this submission of the Revenue, he recorded his finding in the following terms (page 259 of 159 ITR) :

"''In the Income Tax Rules, depreciation has to be allowed on ships which are ocean ships or inland ships. In the category of inland ships as per the Income Tax Rules 4(b), item (iii) (sic) is described as Iron or steel flats for cargo''. It is evident from item (iii) that the flats for cargo are categorized under inland ships, pontoons in the case of appellant company are used for transporting cargo and, in my opinion, the pontoons clearly fall within the category of ship."

The Division Bench of the Gujarat High Court observed that it was no doubt true that so far as the term "ships" was concerned, there was no legislative dictionary in the Income Tax Act. It also observed that it was also equally true that in its ordinary literal meaning, a pontoon could not be considered as ship. Having thus conceded this position, the Division Bench took into consideration the sub-category of other vessels which took in its sweep all the vessels including pontoons, which were operated in inland waters. This, according to them, was the legislative intent, as manifested in the Income Tax Rules, 1962.

After hearing both counsel and after going through the Gujarat High Court judgment and after perusing the order of the Tribunal in the present case at hand, we are of the considered view that such legislative intent cannot be attributed or inferred, and such a broad meaning cannot be given to the word "ship" so as to include "pontoons" within its sweep.

We, therefore, answer the question referred to us in the affirmative and against the assessee-company.

The reference is accordingly answered in the above stated terms. No order as to costs.