Holding

Rule 19A is a valid exercise of the Board’s rule‑making power; the amendment of Section 80J is valid prospectively but its retrospective operation is unconstitutional.

Summary

The petitioners, industrial undertakings, challenged the validity of Rule 19A of the Income‑Tax Rules, 1962, which excluded borrowed capital and fixed the computation of "capital employed" on the first day of the previous year for the purpose of the tax exemption under Section 80J of the Income‑Tax Act. They also contested the amendment of Section 80J by the Finance (No. 2) Act, 1980 that incorporated Rule 19A into the statute with retrospective effect from 1 April 1972, alleging violation of Articles 14 and 19(1)(g) of the Constitution and excessive delegation of legislative power. The majority held that Rule 19A was within the rule‑making authority of the Central Board of Revenue and that the amendment’s prospective operation was valid, but its retrospective operation was unconstitutional. Consequently, the Supreme Court dismissed the Union’s appeal, upheld the High Courts’ striking down of Rule 19A, and declared the retrospective amendment invalid while leaving the prospective amendment intact.

Issues considered

Whether Rule 19A, which excludes borrowed capital and fixes the computation date, is ultra vires Section 80J of the Income‑Tax Act.
Whether the amendment of Section 80J by the Finance (No. 2) Act, 1980, with retrospective effect, violates Articles 14 and 19(1)(g) of the Constitution.
Whether the delegation of power to the Central Board of Revenue to prescribe the manner of computing capital employed amounts to excessive legislative delegation.

Legislation cited

Companies (Profits) Surtax Act, 1964
Constitution of Indias. Article 14, s. Article 19(1)(g)
Finance (No. 2) Act, 1971
Finance (No. 2) Act, 1980s. Amendment to Section 80J
Income Tax Act, 1961s. Section 295, s. Section 84
Income Tax Act, 1968s. Section 80J(1), s. Section 80J(1A)
Income Tax Rules, 1962s. Rule 19, s. Rule 19A

Subjects

capital employedtax exemptionIncome Tax ActRule 19ASection 80Jretrospective amendmentconstitutional challengeArticle 14Article 19(1)(g)excessive delegationindustrial undertaking

Judgment

686
A

M/S LOHIA MACHINES LIMITED AND ANR.
B
v.

UNION OF INDIA AND ORS.

January 25, 1985
c
(Y.V. CHANDRACHUD, C.J., P.N. BHAGWATI, AMARENDRA NATH
SEN, D.P. MADON AND M.P. THAKKAR, JJ.]

Constitution of India, Articles 14 and 19 (1) (g).
D
Income Tax Act, 1968, ss.80J(l) and(lAl, s. 296-lncome Tax Rules,
1962-Rule 19A-Validity of.

"Capital employed" in industrial undertaking-Meaning of-Whether
includes long term borroWiflgs-Computed in the prescribed manner-Central
Board of Reyenue-fflhether competent to prescribe the manner of computation
by Rules-Providing for computation of "capital employed" as on "the first day
E of the computation period"-Whether ultra vfres s. 801 (1)-Whether suffers
from excessive delegation of legislative power-Whether violative of Art. 14.

''Capital employed'' in industrial undertaking-Profits and gains derived
from-Tax relief to new industries-s.801-retrospective amendment of b1
Fi,,ance (No. 2) Act, 1980-lncorporalion of Rule 19A-Validity of-Whether
violative of Articles 14 and 19 (1) (g) of the Constitution.
F
Interpretation of statute-Interpretation of a provision-Historical
Evolution-Whether could be ignornd.

Words used-Plain an unambiguous-Reasonably susceptible to one
meaning only-Whether could be given effect to by the Court-Whether Court
concerned with the policy invlvoed or with the result which may follow.
G
Legislative intent-Whether to be gathered from consistent practice
followed- Whether cognate statutes to be lookd into.

Validating Act-Re~rospective Operation of-When becomes arbitrary
and unreasonable.
H
LOHIA MACHINHS V. UNION 687
A
Administrait~e Law- Legislative power in a taxing statute-Delegation
of- Rule-making Authority-Scope nf- Where relief of exemptiQn is granted by
the st:Jtute- Whether Rule-111aking Authority competent to work out derails of
relief and exemption a its discretion- Legislature's srict vigilance and control
over the Rule-making Authority-Whether excessive delegation of legislative
power fiJ the Executive.

Acquiescence in an earlier exercise of ultra vires rule-making power-
Wheiher such exercise of rule-making power valid at a subsequent date. B

Words and Phrases-Meaning of "Capital en1ployed" - 'Computed in
the prescribed manner'-'Computed'-Meaning of-''Capital employed during
the prei'iiJllS year" and ''Capital en1p!oyed in respect of the previous year"-
Distinction betwt•en.
c

The Taxation Laws (Amendment) Ordinance 1949 introduced s.t5C in
the Indian Income Tax Act 1922 with effect from 31st March 1949. This provision
was similar to s. 80J of the Income Tax Act 1961. Sub-s. (!)of s.15C exempted
a part of the profits and gains of a new industrial undertaking from tax. The
D
Central Board of Revenue made the Indian Income Tax (Computation of Capital
of Industrial Undertakings) Rules, 1949 for computation of capital employed in
the industrial undertaking as envisaged in s.15C(l). According to Rule 3 of
these .Rules the process of computation of "capital employed in the undertaking"
consisted of two steps : one of addition of the value of assets of the industrial
undertak;ng arrived at on the basis of differnt formulae according to the nature
and the date of the purchase of the assets and the other, of deduction of "any
borrowed money and debt due by thf' person carrying on the business". Borrowed E
monies and debts due from the assessee were excluded in co1nputation of "capital
employed in the undertaking" by sub-rule (3) of this Rule.

The Taxation Laws :(Amendment) Ordinance 1949 was replaced by the
Taxation Laws (Extension to Merged States and Amendment) Act 1949 on 31st
December 1949 and s.13 thereof retained s.15C with some minor modifications. F
Sub-s.(I) which granted the exemption remained unchanged. While reenacting
s.15C, the Legislature did not change this position but continued the same Rules
and thus approved the exclusio.1 of borrowed 1nonies and debts in computation
of capital employed in the undertaking and also made it clear that the word
'computed' has been used by it in this context in the sense of involving inclu-
sion as well as exclusion of items which might be regarded as part of the capital
employed in the undertaking. G

Thereafter from time to time changes were made in s.t SC by verious
Finance Acts but these changes were not substantial and they merely extended the
period of production for eligibility from the initial 3 years to 18 years. Business
of hotel was also brought within the purview of the exemption and conditions for
grant of such exemption were laid down. Thus, the basic structure of s. 15C as
well as the Indian Income Tax (Computation of Capital oflndustrial Undertakings)
Rules 1949 remained unchanged. 'Jhe result was that throughout the period from H
688 UPREME COURT REPORTS [1985] 2 s.c.R.

A 31st March, 1949, whens. !SC was introduced in the Indian Income Tax Act 1922
upto the period it remained in force, borrowed monies and debts due from the
assessee were excluded in computing the capital employed in the undertaking for
the purpose of determining the quantum of the exemption eligible under s. 15C.

The Income Tax Act, 1961 repealed the Indian Income~Tax Act 1922.
Section 15C of the Indian Income Tax Act 1922 was recast as s.84 in the Income
Tax Act 1961. Sub-s.(1) of s.84 granted the same exemption as was granted by
sub-s.(l) of s.JSC and the only change made was that the profits or gains eligible
B
for exemption were now to be calculated at "six per cent per annum on the capi.
tat employed in the undertaking or hotel computed in the prescribed manner".
The word 'prescribed' according to definition in sub-s.(33) of s. 2 meant prescribed
by Rules made by the Central Board of Revenue under the Act i.e. Income Tax
Rules 1962. Rule 19 prescribes as to how the capital employed in an undertaking
or a hotel shall be computed for the purpose of s.84. Even under s.84 of the
Income Tax Act 1961 the same position prevailed as before. This position conti-
c nued un-interrupted until s.84 was replaced by s.80J with effect from 1st April
1968 by Finance (No. 2) Act 1967. Sub-s.(I) of s.80J brought about a material
change in the provision as it stood in sub-s.{1) of s.84.

Under sub-S.(1) of s.80J the benefit of the exemption was extended addi-
tionally to profits derived from a ship and so far as the quantum of exemption
was concerned, the formula adoPted for calculating it was "six per cent per annum
on the capital employed in lhe indurstrial undertaking or ship or business of the
D hotel, computed in the prescribed manner in respect of the previous year relevant
to the assessment year". The new words introduced were "in respect of the previ-
ous year relevant tn the assessment year". Sub-s.(2) of s.80J laid down the period
for which the exemption shall be .allowable and sub-s.(3) provided that any defi-
ciency in the benefit of the exemption arising on account of the profits and gains
being less than the relevant amount of capital employed during the previous year
E
shall be carried forward and allowed as a straight deductioa in computing , the
total income of the assessee for the subsequent years subject to the proviso that
in no case shall the deficiency or any part thereof be carried forward beyond the
seventh assessn-,ent year as reckoned from the end of the initial assessment year.
Sub-s.(4} enacted certain conditions to be fulfilled before an industrial undertak-
ing could quti'lify for the benefit of the exemption and one of the conditions was
F that the industrial undertaking should not have been formed "by the transfer to
a new business of a building machinery or plant previously used for any purpose.•
Sub-s.(5) laid down several conitions to be fulfilled before the benefit of the
exemption could be made available in case of profits derived fiom a ship. Sub-s.
(6) provided certain exceptions to the provisions contained in sub-s.(4).

G Since the profits derived from an industrial undertaking or a ship or the
business of a hotel were eligible for exemption only to the extent of per '
annum of the capital employed in the industrial undertaking or ship or business
of a hotel computed in the prescribed manner in respect of the previous year
relevant 10 the assessment year, the Central Board of Revenue made Rule 19A
prescribing the manner in which the capital employed in the industrial undertak-
ing, ship or business of the hotel should be computed for the purpose of Section
80J. :Jtule J9A made material alteraticins in the taxture of Rule I'.
LOlliA MACHINES V. UNION 689
Rule 19A brought about two noticeable changes, namely, {1) that where
A
as under the Indian Income Tax (Computation of Capital of Inc'ustrial
Undertakings) Rules 1949 and Rule 19, the average cost of assets acquired by
purchase on or after the commencing date of the compu!ation period was requir-
ed to be taken into account in computing the capital employed in the industrial
undertaking or hotel,. a deliberate departure was n ade f1om this formula and
under Rule 19A, assets acquired on or after the cornrnenccment oftl:e ccrrputa- B
tion period were to be left out of account and only the arr.aunts rei:-re-
senting the value of the assets as on the first day of tl'e ccrnputaticn prricd
were to enter into the computation of the capital err1ployed in the ir.dusl rial
undertaking or the businesc of a hotel, and (2) that though under the
Indian Income Tax (Computation of Capital of Industrial Undertakings) Rules
• 1949 and Rule 19, all borrowed monies and debts due from the assessee were
required to be deducted in computing the 'capital employed' in the industrial
undertaking or a hotel, a certain amount of liberalisation was introduced under
Rule 19A providing that "monies borrowed from an approved source for the
creatain of a capital asset in India, if the agreement under which such monies are
borrowed provides for the repayment thereof during a period of not less than
seven years" shall not be liable to be deducted but shall be taken into account in
computing the capital employed in the industrial undertaking or the business of
a hotel for the purpose of Section 801. The result was that from and after 1st
April 1968, when Rule 19A came into force, borrowings from an approved D
source repayable in not less than seven years started for the first time to be taken
into account in computation of the capital employed in the industrial undertaking
or the business of a hotel, though other categories of borrowed monies and debts
due from the assessee continued to remain excluded from such compatation.

This state of affairs continued until 1st April 1971 when the Finance (No. E
2) Act 1971 came into force. While introducing the Bill, the Finance Minister
made a policy statement on the floor of the House, that in calculating the limit
of 6 p~r cent of the capital for purposes of tax-exemption, debentures and long·
term. borrowings will be exeluded, This policy statement was implemented by the
Central Board of Revenue by amending Sub-Rule(3) of Rule 19A. The conse-
queni:e of this amendment was that the position as it provailed prior to the
enactment of Rule 19A wai;; again r..::stored with effect from 1st April, 1972.
F

Under Rule 19 of the Indian Income-Tax (Computation of Capital of
Industrial Undertakings) Rules 1949 from Ist April 19-1-9 upto 31st M.irch 1968
all borrowe,I monies and debts owed by the assessee were excluded in computing
the capital employed in all industrial undertaking or the business of a hotel. 1'1-J
challenge was ever preferred against these Rules.

' G
From 1st April 1968 under rule 19A a liberalisation was introduced by
inclusion of long term borrowings (repayable in not less than seven ye1lSJ in
computation of the 'capital employed'. Tliis liberalisation was wi1;idrawn with
effect from Ist April 1972 and only then for the first time some asscssees raised a
c9ntention before the Bombay Bench of the Income Tax Appellate Tribunal in
ff
690 SUPRBM E COURT REPORTS [1985] 2 S.C R·
A Mis. Alim Chal'ld T pan Dass v. J.T.0. that on true construction of sub-s. (1) of
s.801 th! capital emp oyed in thel ndustrial undertaking or the business of a hotel
would include long tenu borrowing 1 since according to fair natural construction
of the words used, they were part ·)f the 'capital employed' and Rule 19A sub-
rule (3) in so f<ir as it excluded long term borrowings from the computation of the
'capital employed was ultra vires sub-s. (1) of s. 80J and despite sub-rule (3) of
Rule t9A, long term borrowings were liable to be taken into account in compu-
B ting the 'capital employed' in the industrial undertaking or the business of a
hotel.

The Bombay Bench of the Tribunal accepted this contention and held
c that sub-rule (3) of Rule 19A was in conflict with sub-s. (1) of s. 801 and hence
it was liab'e to be ignored in computing the capital employed in the industrial •
undertaking or the business of a hotel. This decision was, however, reconsidered
by a Special Bench of the Tribunal in M/s. Enico Transforn1e1's Ltd. v. ITO and
the Special Bench overruled this decision and held that there was no conflict at
all between sub-rule (3) of Rule 19 and sub-s. (I) of s. 80J and all borrowings
including Jong term borrowings owing from the assessee were liable to be exclu-
D ded in computing the capital employe1 in the industrial undertaking or the busi-
ness of a hotel.

Later differi:Jlt High Courts had held conflicting op1n1ons as regards the
exclusion of long lerm borrowings Some of the High Courts also found fault
with another provision in Rule 19A which 1equired that the 'capital employed'
should be computed as on the first day of the computation period. The Calcutta
E
High Court in Century Enca Ltd. v. ITO ITR 909 took the view that what
sub-s. (1) of s. 801 required was computation of capital in respect of the
previous year and not as in the first day of the previous year and therefore
Rule 19A, in so far as it provided that the computation of capital should ..J
be made as en the first day of the computation period, was ultra vires sub-s.
(1) of s. 80J. One or two other High Courts also adopted this v:ew.
F
The Government felt that this view was erroneous and did not correctly
reflect the intention of Parliament as is evident clearly by the legislative history
of this provision. Parliament in order to avoid confusion and uncertainty which
would prevail in the state of law until a finsl pronouncement was made on these
two issue by the Supreme Court, amended s.80J in 1980 by introducing sub-s
(lA) with retrospective effect fron1 lst April 1972.

G The newly introdu~ed sub-~.(1A) was in the same terms at Rul~ 19A. The
manner of computation of the 'capital employed' in an indu<itrial undertaking or
the business of a hotel or a shi,, remained the same but it was now set out in sub.
s.(tA) instead of Rule 19A. The words "compukd in the prescribed manner"
occurring in sub-s.(1) of s. 80J were also substituted by the words ''computed in
the manner specified in sub-s. (IA)" \vith retrospective effect fron1 1st Ayri1,
1972.

In the writ petitions to this Court it was contended on behalf of the pe 1
•
LOHIA MACHINES V. UNIOr.l 691
A
tioners : The expression "capital employed in re~pect of the previous year"
has two dimensions, namely, dimension of quantum and dimension of time. As
regards the dimension of quantum, the expression "capital employed" in its legal
as well as in its popular or commerial sense must, include long tern1 borrowings
and working capital and on a fair and liberal view, it would also include short
term borrowings. In any event, long term borrowings must be held to be included B
in the ''capital employed". Under the Companies Act 1956 a Joan repayable after
one year or more from the date of the balance sheet would be a long term loan
and it must be held to be part of the 'capital employed'. Even assumin there was
any ambiguity in tbe expression 'capital employed' it must necessarily include
long term borrowings in the context of s.80J because Parliar.1ent could not have
possibly intended to favour affiuent assessees who are able to employ their
own capital and to discriminate against indigent assessees who have to borrow c
funds tu finance their undertakings.

As regards the dimension of tiine it was urged that the concept of 'capital
employed' durin& or in respect of the previous year is a concept which must
-' compel attention to the reality of the funds used durig the whole year and not
merely on any one single day such as the first day of the computation period. D
Cdn<;equently, Rule 19A was ultra vires s.(1) of s.80J to the extent that it pres-
cribed a mode of computation of the 'capital employed' in terms that excluded
all borrowed capital and also provided for computation of th.: 'capital employed'
only on the first day of computation period and ignored all additional capital
employed during the rest of the computation period. Rule 19A was invalid since
it derogated frOm the full operative effect of the provisions of Section SOJ and ar.. E
bitrarily abridged the scope of the exen1ption under that section byexcludin& what
was clearly part of the 'capital employed' and ignoring the ccapital employed'
throughout the cornputation period except on the first day. Therefore, the amend-
ed sub-s.(lA) introduced in s.80J with retrospective effect from 1st April 1972
was unconstitutional as being violative of Articles 14 and 19(1)(g) of the Consti..
tutioaal.
11
On behalf of the respondents-Union of India. it was contended :
(1) tilat the expression 'capital employed' was neither a term of art nor an
cxpres~ion with a definite fixed connotatian and it meant different things in
different contexts. It did not necessarily include longterm borrowings and
sub-rule (3) of Rule 19A excluding long term borrowings from the compu..
tation of the 'capital employed' could not, therefore, be said to be in
conflict with sub-s.'l) of s.80J Alternatively, in any event, for calculating the
relief under sub-s.(1) of s.80J, the stipulated rate of percentage was to be G
applied not just to the 'capital employed' without any further qualification but
to the ·capital employed ... computed in the prescribed manner'. The manner of
computation was to be prescribed by Rules made by the Central Board of Reve-
nue. Computation involved exclusion as inclusion of items which might be regar-
ded as forming part of the 'capital employed' and sub-rule (3) which was an
integral part of the process of computation laid down in Rule 19A did not, there·
fore, derogate from the provisions of sub-s.(l) of s-80J and was within the man-
date of that section; (2) that sub-s.(l) ofs.801 being a provision in a taxing statute,
•
692 SUPREME COURT RBPORfS

A it had necessarily to be left to the Central Board of Revenue to decide, ha"ing
regard to the changing economic circumstances \vhat should from time to time
be taken to be 'capital employed' for the purpose of calculating the relief a1low-
able under sub s.(1) of s.801 and moreover the Rules made by the Central Board
or' Revenue in that behalf were required to be placed before each House of Parlia-
ment for its approval and there was, therefore, no excessive delegation involved
in sub·s.(1) of s.80J leaving it to the Central Board of Revenue to prescribe how
B
the capital employed' should be computed and what items shculd be included
and what items excluded;(3) that the words used in sub·s.(1) of s 80J in regard
to the computation of the 'capital employed' were not 'capital employed during
the previous year' but 'capita] employed ... in respect of the previous year. The
words 'in respect of the previous years' were deliberately introduced in sub·s.(1)
ofs.80J when that section came to be enacted with the result that the 'capital
employed' that was required to be computed for the purpose of s.80J was the
'capital employed in respect of previous year'. Rule 19A was, therefore, not in
c conflict with sub-s.(1) of s.80J when it provided that the 'capital employed'
in respect of the previous year shall be computed as on the first day of the previ.
ous year. If Rule 19A was valid in its entirely no equestion of constitutional
validity of the newly introduced sub·s.(1 A) could possiblly arise because what
sub~s.(lA) did was merely to reproduce Rule 19A ipsissin1a verba with effect
from 1st April, 1972 and it was clarificatory in nature. Alternatively, if Rule 19A
was invalid in both respects, the new sub s.(lA) introduced in s.80J with retros-
pective effect from 1st April, 1972 did not violate any of the fundamental rights
D under Article 14 and 19(!)(g) and was not unconstitutional or void.

Olsrolssing the Writ petitions, .;

HELO : [C,J., Hhagwali, Madon and Thakkar, JJ. Per majority.]
[A.N. Sen, J. dissenting.]

I (I) Rule 19 A in so fat as it excluded borrowed monies and debts in
t'Omputation of the 'capital employed' and provided for computation of the
'taPital employed' as on the first day of the computation period was not ultra
vires s.80J and was a perfectly valid rule within the rule-making authority
conferred upon the Central Board of Revenue. [749C]

1 (ii). So also, or the same reasons, Rule 19A in so far as it'provided
that the 'capital employed' in a ship sha11 be taken to be the written·down value
:_,":" of the ship as reduced by the aggregate of the amounts owed by the assessee as
on the computation date on account of monies borrowed or debts incurred in
G acquiring that ship must be held to be valid as being within the rule making
authority of the Central Board of Revenue. [749D]

I (iii). Sirtce, Rule 19A did not suffer from any infirmity and was valid in
its entirety, Finance Act (No. 2) of 1980 in so far as it amended s.80J by incor·
porating Rule 19A in the section with retrospective effec,. from 1st April, 1972
was marely clarificatory in nature and must accordingly be held to be valid. [749E]

r
toHlA MACHINES v UNION

"'/ 2. The exclusion of all borrowed monies including long term borrowings
A
from computation of the 'capital employed' as being in conflict with either s.15C
or .i .84 remained unchallenged for a period of 19 years i e. fron1 Ist April, 1949
to 31st March, 1968, but that cannot be a ground for negativing such challeni;:e.
Acquiescence in an earlier exercise of rul~-makinf) power which was beyond the
jurisdiction of the rule-making authority cannot make such exercise of rule·
making power or a similar exercise of rule-making power at a subsequent date B
\.- valid. If a rule made by a rule-making authority is outside the scope of its power,
.,. -;_ it is void and it is not at all relevant that its validity has not been questioned for
a Ion,::: period of time : if a rule is void, it ren1ains void whether it has been
acquiesced in or not. [722C-E]

Proprietar.v Articles Trade Associations v. A.G. of Canada, [1931] AC. c
310 and A.G. for Australia v. Queen, 95 C.L.R. 529, referred to.

\. 3. Non-challenge of exclusion of borrowed monies from computation of
"' ..l.capital employed' and the validity of Indian Income Tax (Computation of
Capital of Industrial Undertakings) Rules 1949 and Rule 19 for 19 years shows
that both the assessees as well as the Revenue proceeded on the basis that on a D
true construction of the language of ss. 15C and 84, it was within the competence
of the Central Board of Revenue to exclude borrowed monies in computing the
'capital employed'. Parliament also approved of this interpretation of ss. 15C
and 84 and posited the validity of the Indian Income Tax (Computation of
Industrial Undertakings) Rules 1949 and Rule 19. While re-enacting s 15C,
• Parliament continued the same rules and thereby placed its further seal of
approval on such exclusion of borrowed monies in computing the 'capital
""' employed' for the purpose of s 15 C. If Parliament thought that the Indian In- E
come Tax (Computation of Capital of Industrial Undertakings) Rules 1949 in so
far as they provided for exclusion of borrowed monies were not in conformity
with its intention, it could have easily made specific provisions indicating its
intention in the clearest terms when it enacted s.84 in the Income Tax Act, 1961.
Rule 19 made to give effect to s.84 again excluded borrowed monies from com-
putation of the 'capital employed', Income Tax Rules 1962, which included Rule
19, after having laid before each House of Parliament, got the approval of the
,,J... Parliament. It is 11ot that even if a Rule purporting to be made under a statute is F
outside the authority conferred by the statute, it would still be valid and have the
force of F.iw if it is placed before each House of Parliament and is not disappro·
ved by either House. By not disapproving of Rule 19, Parliament accepted the
validity of the assun1ption that exclusion of borrowed monies in computation of
'capital employed' was permissible under the terms of s.84 and clearly indicated
that such exclusion of borrowed monies had its approval. Thus, Parliament
throughout, save in respect of the period from Ist April, 1968 to 31st March, G
1972, approved of exclusion of borrowed monies in con1puting the 'capital emplo~
yed' as being in conformity with its intention and regarded such exclusion as
""¥ being within the terms of s.15C or s.84 or s.80). [722E-H to 725A-Dj

4. Even during the period from !st April 1968 to 31st March 1972 when
Rule 19A sub-rule (3J stood unamended, it is only borrowings from an approved
H
694 SUPREME COURT REPORTS [1985) 2 s.c.R.

source repayable within not less th1n 7 ye1rs which were includible in computa-
tion of the 'capital employed' and not all long term borrowings. If all long term
borrowings invariably and in all cases formed part of the 'capital employed' and
were liable to be included in the computation, the unamended sub-rule (3) of Rule
19 A in so far as it excluded long term borrowings, other than those from an
approved source repayable within not less than 7 years, would be invalid as being
B in derogation of the provisions of s.80J, Sub-s. (1). The validity of the unamended
sub-rule (3) of Rule 19A was never challenged by the assessees.
l731F; 713H ; 7l!G-H]
5. There is no unanimity amongst accountants and lawyers in regerd to
the question whether 'capital employed', either in its legal sense or in commercial
parlance or accountancy practice, necessarily or always includes long term bor-
rowings. Even the High Courts have differed in regard to the true meaning and
content of the expression 'capital employed', The expression 'capital employed'
c is not a term of art not is it an expression having a fixed connotation or meaning
but it is susceptible of varied meanings, including or excluding short term
borrowings or long tenn borrowings, whether of all categories or of any parti- )
cular category or categories depending on its environmental context.
A
[730G-H!; 731A-C]

The Internal finance of Industrial Undertakings by T.G. Rose; Tern1ino-
logy of Cost Accountancy published by The Institute of Cusi and Works Accoun-
0 tants, U.K. (October~ 1967) The Director's Guide to Accounting and Finance by
M.G. Wright: Modern Published Accounts by RS. Waldron and E.H.D. San1·
bridge ; Jnter-Ffrm Co111parison of Financial Performance by the Bon1bay Tex ..
tile Re.search Association; Dictionary of Business and Management by K.C. ~
Parekh ; Principles and Practice of Managen1ent Accountancy by J.L.
Brown; Financial Manager's Job by Elizabeth Marting and Robert E. Finley; r
Glossary of Manage1nent Accounting Terms by the institute) of Cost and Works
Accounting of India; F~n1nce For the .Non-Accountant by L.B. Rock/ey;
Principles and Practice oj Ma11agement by E.F.L. Brech ; Information Note
No. 10 on Return on Capital E1np/oyed prepared by All India Management
Association,· Advanced Accounts by Carter (5th Ed11. by Douglas Garbutt); Book
Keeping and Accounts by Spicer and Pegler and Management Accountancy by
Even J. Batty ; Members Handbook of the Institute of Chartered Accountant in
F England and Wales; Framework of Accountancy by C.C. Magee; Business ~
Accouutlng I by B./:,""'. TJlliott; Company Law by Palmer; and Principles of
Modern Company Law by Gower ; referred to.

SA. There is no material difference between the language of sub-s.(1) of
of s.SOJ and the language of its predeceessor sections, namely, s.15C sub-s.(1) and
s.84 sub·s.(l). The words used in sub·s.(l) of s.SOJ are "capital employed ....
G computed in the prescribed manner". The statutory rate of percentage for the
purpose of calculating the relief allowable under sub-s(l) of s.SOJ is to be applied
not just to the ·capital employed' but to the "capital employed ... computed in
the prescribed manner". [725E-F]

6. The expression 'capital employed' has a variable meaning and that
is why Legislature has enacted that for the purpose of calculating the relief allow-
able under s.SOJ sub-s.(l), the statutory percentage must .be applied to the
'capital employedT as computed in the prescribed n1anner, which was to be pres-
LOHI A MACHINES V. UNION 695
cribed by the Central Board of Revenue by making Rule or Rules under s.295 of A
the Income Tax Act, 1961. The process of computation would involve both inclu
sion and exclusk n of it( ms which may possibly be regarded as falling within the
expression 'capital employed'. The Central Board of Revenue may include some
items and exclude some others while prescribing the manner cf computation of
the 'capital employed'. This is the sense in wh:ch the word 'computed' has been
consistently used by the Legislature while enecting legislation of this kind, name-
ly, Excess Profits Tax Act, 1940, Business Profits Act, 1941. Super Profits Tax
Act 1953 and Companies (Profits) Sur Tax Act 1964. The legislative history
behind the use of the word 'computed' in relation to the 'ccpital employed' and B
the legislative recognition it has got indicate that it involves, as part of the pro. ess
y of computation, both inclus.ion as well as exclusion of items which may other-
wise be regarded as forming part of the 'capital employed'. In the definition of
' "total income in" s2. cl.(45> of the Income Tax Act, 1961 itself the word 'comu-
ted' has been used by the Legislature as comprehending within its scope not only
inclusion but also exclusion of certain items of income which are part of the in-
come of the assessee. In ss.10, II, 30 to 43A, 80A to 80VV, 80HH 80JJ and 80-0
of the Income Tax Act, 1961, the word 'computed' in relation to the 'capital em-
c
ployed' has been ass:gr.ed the same rreaning. Even in scme of sub-sections of s.
80J the word 'cornpUted' has been used in the same sense as involving both inclu-
sion and exclusion. The point is not whether an exclusion is made by the Legisla-
l
ture or by the rule- making authority but whether such exclusion is implicit in the
pr<'cess of computation so as to be comprised in it. It is left by the legislature
to the Central Board of Revenue to prescribe the manner in which the 'capital
employed' shall be computed and in so prescribing, the Central Board of Revenue D
may include or exclude items which may be regarded as forming part of the
'capital employed.' [732B-H; 733 A-CJ
7. When the Central Board of Revenue prescribes by making rule or rules
what items shall be included and what items excluded in computation of the
'capital employed', what the Central Board of Revenue does is to prescribe the
manner or mo<'e of computation of the 'capital employed' by hying down as to E
... how the 'capital employed shall be computed . and that would be clearly within
the rule-making authority conferred upon the Central Boarl-i of Revenue. There-
fore, if the Central Board of Revenue makes rule or rules providing for exclusion
of long term borrowings in computation of the 'capital employeJ', there can be
no question of encroaching upon or remoulding the substance of the 'capital em-
ployed'. The conclusion must, therefore, inevitably foilow that even if long term
borrowings could be said to form part of 'capital employed'-and indeed they
can in a given context form part of the 'capital employed'·it was competent to the F
Central Board of Revenue in exercise of its rule-making power to prescribe that in
computing the 'capital employed', borrowed inonies and debts shall be excluded.
[736A·E]
8. The Central Board of Revenue in making sub-rule (3) of Rule 19.1\. was
guided by earlier precedents in Excess Profits Taxr Act 1940, Business Profits Tax G
Act 1947, and Super Profits Tax Act, 1963 and made a ~imilar provision exclud-
ing borrowed 1nonies and debts in computation of the 'capital employed'_ Jn the
circumstances, it could not be said to have acted arbitrarily or whimsically or in
an irrational or unusual manner in enacting sub-·ule(3) of Rule 19A. (737C-D]
Utah Construction v. Pataky, (1965]3 All England Reports 650 and Sales
fax officer v. K.1. Abraham, [1967] 3 SCR 518, relied upon.
696 SUPR!lMB COURT REPORTS (1985] 2 S.C.R,

A 9. Once it is conceded that the Central Board of Revenue was within
its authority in including certain categories of long term borrowings and
excluding certain other ca 1egorieo in computation of the 'capital employed"
it must follow as a necessary corollary that the Central Board of Revenue
equally without e:itceediog the authority conferred upon it, exclude all long
term borrowings to whichever category they mi~ht belong. [73 JH; 732A)

8 JO. In the instant case, so far as sub-s. (1) of s. 80J is
concerned, interest payable on borrowed monies in deductible in computing
the total income of the assessee and is not required to be added back and
hence it is quite consistent with the pr<tctice adopted and recognised by the
Legislature in these various statutes, to exclude long term borrowings in
computation of the 'capital employed', for the purpose of allowing relief
under sub-s. (1) of s. 80J. [739E-F]
c
11. Although the object of the E<cess Profits Tax Act 1940, Business
Profits Tax Act 1947, Super Profits Tax Act 1963 and the Companies
(Profits) Sur Tax Act 1964 is different from sub·s. (1) of s. 80J in that the
four statutes belonging to the former group seek to tax excess profits or
iuper profits while the statutory provisirins in the latter group seek to offer
tax incentive by exempting a certain portion of profits, but so far as the
D question of computation of the 'capital employed' is concerned there is no
distinction between the above.mentioned four statutes on the one hand and
sub-s. (I) of s. 801 on the other. [740E-F)

12. Though the object of the two sets of provisions is different, the
concept of fair return on 'capital employed' lies at the base of both sets of
provisions. If for the purpose of determining the excess profits liable t< the
E charge of additional tax under ony of the afore·mentioned four statates,
rair return is calculated on the owner's capital employed in the undertaking
excluding the borrowed monies, there is nothing irrational or unusual in the
Central Board of Revenue providing that for computing the fair return on
the 'capital employed' which is to be exempted from from tax uhder sub.s.
(1) of s. 80J, the owner's capital alone should be taken into account and
borrowed monies should be excluded. [740G-H; 741A]
F
13. It is obvious that the Central Board of Revenue intended-and
having regard to the retrospective amendment of s. 80J by Finance Act
(No. 2) of 1980, that mu'it also be taken to be the intention of the
Legislature-that the assessces should be given relief only with reference to
their own capital and not with reference to any borrowed monies, presu-
mably because the object of giving relief was to encourage assessees to bring
out their own monies for starting new industrial undertakings and the
G intention was not that the assessces should be given relief with reference to
monies which did not belong t0 them but which were borrowed from
financial institutions and other parties which would have to be repaid.
[7420-E]
14. In the instant case, there is no question of excessive delegation
of legislative power. The efSCntial legislative policy of allowing relief of
an assessee who starts a new industrial undertaking or business of a hotel and
!I ~cclarin~ the period for wltich such relief shall be ~ranted, is laid down. by
LOHiA MACHINES v, UNION 697'

.. ,. the Legislature itfelf in the various sub-sections of s. 80J and all that is
left to the Central Board of Revenue to prescdbe is the manner of computti-
t icin of 'capi1al employed' with reference to which the quantum of
relief, which would depend on diverse factors, is to be calcula~ed. This
is clearIY permissible wi1hout offending the inhibition against excessive
delegation of legislative power. Section 80J enacts an exemption in a
taxing statute and a certain margin of latitude is always allowed to the
executive in working out the details of exemption in such a taxing statute. n
[742F-H; 743A]
Pt. Banarsi Dass Bhanot v. State of Madhya Prade>h, [1959] SCR 427;
Sitaram Bls~ambardas and Ors. v. State of U.P. and Ors. [1972] 2 SCR 141
' and Hlralal Rata11 Lal v. State of U.l'. and Anr., [1973] 2 SCR 502, followed.

IS. Under s. 296 of the Income Tax Act, 1961 every rule made C
under the Act is required to be laid before each House of Parliament.
Parliament has thus not parted with its control over the rule-making
authority and it exercises strict vigilance and control over the rule-making
power exercised by the Central Board of Revenue. [74SG]

Powell v. Appollo Candle Company Limited, [1885] 10 AC 282, & G.S.
Grewal v. State of Punjab [1959] Suppl. I S.C.R. 792, relied upon. J)

16. When sub-s. (ll of s. 80J speaks of 'capital employed' in an
industrial undertaking or business of a hotel, it does not refer to 'capital
employed' during the ·previous year but it uses the expression 'capital
employed' in respect of the previous year. There is a vital difference between
·tho expression Hduring the previous year" and the expression "in connec-
tion with the previous year". The expression used in sub-s. (1) of s. 80J
being ''capital employed ..•... computed in the prescribed manner in respect
of the previous year,,, the computation bas to be in respect of the previous
year and it need not take into account the averge amount of 'capital
employed' during the previous year but it can legitimately take the first
day of the previous year as the point of time at which the 'capital employed'
must be computed. The 'capital employed go computed would clearly fall
within the expression ''capital cmployed ...... computed in the prescribed
manner in respect of the previous year". The description given in the
parenthetical portion at the end of sul>-s. (I) of s. SOJ b merely a
description given to the amount calculated as provided in the main part of
sub-s. 801 and in the m'lin part the words are "in rcspe.;t of the previous
year" and not "during the previous year''. It wa~ following upon the
introduction of the words "in respeet of the previons year" in sub-s. (I}
of s. 801 that Rule l 9A was made providing for computation of the 'capital
employed' as on the first day o: the computation period. Even if the words G
"in respect of the previous year" were absent, it would have been competent
to the Central Board of Revenue as the rule making authority to provide
for the computation of the 'capital employed' as on the first day of computa·
tion period, as was dono by the Legislature in the case of the Companies
(Profits) Sur Tax ActJ 1964. The words "in respect of the previous year"
are facilitative of the computation of the 'capital employed' being prescribed
~·on t~e first day of the computation period. Sub-rQlc (3) of Rµle l9A

"
698 SUPRllMB COURT REPORTS (1985) 2 S.C.R•

A is, therefore, a perfectly valid piece of subordinate legislation.
[747G-H; 748A-H; 749A]

P~r .4..N. Sen, J, (Dissenting).

Rule 19A in so far as it seeks to exclude the borrowed capital and
fixes the first day of the year for the computation of relief under s. 80J is
B invalid and unconstitutio!lal and the same has to be struck down and bas
been struck down rightly by the various High Courts. The impugned
amendment of 1980 incorporating the provision of the invalid Rule 19A in
the section itself. is valid in its prospective operation from the date of the
amendment but is unconstitutional and invalid in so far as the said amend·
ment is sought to be brought into operation retrospectively with effect from
1st April, 1972. [782H; 783A-B)
c Century Enka Ltd. v. I.T.O., (1977) 107 !TR 123; Madras Industrial
Ltd. v. I."f.O., (1977) 110 IfR 256; Kora Box Manufacturing Co. v. l.T.O.,
(1980) 123 lTR 638; Ganesh Steel Industries v. I.T.O. (1980), 126 !TR 258
and Warner Hindustan Ltd. v. I.T.0, (1982) 134 I.T.R. 158, approved.

Commissioner of Income Tax, M.P. II v. Anand Bahri Steel and Wire )
Products, (1982) 133 I.T.R. 365, over ruled.
D
2. (1) In the instant cases; the words 'capital employed' have to be
understood and interpreted 10 the contex: the sa-id words have been used in
s. 80J. It is quite clear rrom the text of s. 80J that the words 'capital
employed' have been used in the context of the capital which hBS been
employed in the undertaking for producing profits and gains of the under-·
taking in the relevant year. If borrowed capital is also employed in the
E undertaking, capital employed necessarily and clearly includes such
borrowed capital which has been employed in the undertaking and wh iCh
has contributed to the profits and gains of tbe undertaking. Therefore,
s. 801 in clear language postulates that capita! employed in the undertak..
ing includes own capital and also borrowed c1pital employed in the
undertaking in the relevant year and the section plai11ly and uoequivoca lly
makes this ioteotion of tho Parliament manifestly clear. [759A·C)
F
2. (ii) This interpretatioa not only makes perfect sense but also
clearly promotes the object for which this section was incorporated. The
object of s. 801 which indeed replaces the earlier s. 84 which came in place
of s. l 5C of the earlier Income-tax ActJ is to give impetus and encourage- _,;.......,
mcnt to the setting up of new industrial undertakings by offering tux incen-
tives or tax relicrs on the capital employed in such undertakings. [7598-F]

G Emperor v. Banwari Lal SarmaJ A.LR. 1945 P.C. 48; Kanti Lal Sur v.
Paramnidhi Sadhukhan, A.LR. 1957 S.C. 907; Textile Machinery Corporation
v. Commissioner of Income-tax, West Bengal, (1977) 107 I.T.R. l9S and
Rajagapalavan Mills Ltd. v. Commissioner oj' Income Tax, Madras, t 1976) 115
ITR 777; relied on.
3. Section SOJ only enjoins that capital employed is to be computed
in the manner to be prescribed and the manner of computation of the
capital em~lored onlf authorises the rqle-making authority to deal witl\
LOHiA MACHINES v. UNION 699
he details reg:irding cotnputation of capital employed for carrying cut the
provisions of the section and the provision regarding the manner of com-
putation does n'Jt empower or authorise the rule-making authority to lay-
down which part of the capital employed or how much of it will have to A
be included or excluded and to what extent, if any. The question whether
there should be any such exclusion or inclusion in the matter of considera-
tion of the grant of relief, is essentially a m1tter of policy for the
Legislature to decide and is not a matter for the ru le-m.1ktng authority
to prescribe, The power of the rule-mJking authority in terms of the
provisions of s. 295 of the Income Tax Ac·: is limited to the framing of
... the Act. The rule-mlking authJrity doe~ not have any power to encroach B
) upon any substantive provisions in the statute. [760H; 76JA-C]

4. In the section itself or in any other provisions of the Act it does
not appear that there is any provision laying down any guideline which may
entitle the rule-making authority to exch de any part of the capital
employed, whether it is borrowed capital or own capital. There could not
poS.iibly be any such provision or guid!ine in the Act, as the section itself c
clearly provides that the entire amount _of capital employed for eaniing the
profits will qualify for the relief. If it be held that the rule-making autho·
rity ·enjoys power of excluding any part of the capital employed in the
undertaking, It must necessarily be held that the rule-making authority
enjoys the power of framing a rule contrary to the provision of the section.
It must further be held that th~ rule-making authority at its discretion
enjoys the power to exclude the whole or part of owner's capital and also the D
whole or part of the borrowed capitai. This interpretation would mean that
uncanalised power will be available with the rule-making authotity which at
its discretion and in the absence of any guideiine will be enti tied to exclude
anY 9r every part of the capital employed even to an extent of rendering the
section itself nugatory. fhis will have the effect of justifying a delegation
of power to the rule-mJ.king authority to an extent which cannot be per-
E
-. mitted. The rule making authoJity docs not enjoy any such power or
jur'isdiction. No such power or jurisdiction in the absence of specific
provisi in and clc:ar guideline in the Act could b: delegated to the rule-
making authority. [761G-H; 762A-D]
Sales Tax Officer v. K. S, Abraham [1967] 3 S.C.R. 518 and Utah
Cor.struction & Engineering Pv1. and Anr. v. Paraky, [1965] 3 All. E.~ 650
relied on. E
5. Interest paid on borrowed capital by any uudertaking, whether it
is an undertaki11g within the m3aning of s. 8'lJ or not, is taken into account
as ?usiness. expend1tur~ in calculating the profits and gains of any under-
taking. It is the prescribed mode of calculating the profit and gains of eve 1y
undertaking and in no special benefit for any undertaking; and undoubltedly
it affords no incentive or special relief to a new underlaking which has G
nec~~sarily to satisfy the required conditions laid down in s. SOJ for being
entitled to the relief int(.'nded to be granted to an undertaking which comes
within the purview of s. 80J. [764A-D]

. In the i~st~nt case, the ex~Jusion of borrowed capital by the rule-
mak1n~ ~uthor~ty 10 the rules prescribed for computation of the relief under
s. 80J •s 1pconmtent with and derogatory to the provioions of the statute,
700 SUPREME COURT REPORTS [1985] 2 s.c.R.
The said rule not only fails to carry out the purpose of the said section but ·
A in fact tends to defeat the same and the rule runs clear Jy contrary to the
provision! of the statute. The rule excluding borrowed capital must, there•,
fore, be held to be bad and invalid. [764F-G]
Century Enka Ltd. v. f.T.O., (1977) 107 !TR 123; Madras Industrial
Linings ltd. v. l.T.O. (1977) 110 !TR 256 : Kata Box Manufacturing .Co. v.
l.T.O., (1980) 123 !TR 638 ; Gane.h Steel Industries v. J.T.O. (1980) 126 !TR
B 258 anti Warner Hindustan ltd. vs. l.T.O. (1982) 134 !TR 158 approved.
Commissioner of Income Tax,. M.P. II v. Anand Bahri Steel and Wjre
Products (1982) 1331.T.R. 365; explained and disapproved.
7. It is entirely for the Parliament to decide whether any relief by
way of inccntive!should be allowed and if so to what extent and in what
manner. There is no obligation on the part of the Parliament to make any
prOvision for!granting relief to promote new industries. The LegisJature in its
c wisdom may decide to grant relief and may equally decide not to grant any
relief. It is essentially for the Legislature to decide as to whether any incen·
tive for promoting industrial growth of the country is called for anci if the
L_eg_islature feels that in the situation prevailing in the country such incentive
should be provided it will be again for the Legislature to decide what kind
- of. incentive and .. in what form and to _what extent the same should be Pro~
\ided and to pass appropriate legislation in this regard. The Parliament
A A
would have been legally competent to withdraw the entire relief under s._-80J
D
and 'to abrogate the said section in its entir~ly, if the Parliament had
considerd such withdrawal to be necessary. The Parliament is equally
competent to increase or reduce the qu1ntum of relief intended to be given
under thic; section. In providing that relief intended under s. 80J would be
allowed only to owner's own capital and to any borrowed capital, there
can:,be"·no. infringem.;nt of Art. 14. He enterprenuer or businessman can
claim as a matter of right that relief by way of incentive should be provided
E to new undertakings to be set up by him. The Parliament provides for such
relief in pursuance of a policy and policy may change from time to time in
view of :.the situation prevailing from time to time, The Parliament may
legitimately. feel that borrowing by bu, inessme'.l may not be sncouraged and
persons should be encouraged to bring their own money for setting up new
undertakings and Parliament may provide for appropriate relief by way of
incentive~~to .. the 1 ownes's capital employed to the exclusion of borrowe,d
F capital i~ the~sei'ting up of any new industrial undertaking. It is not for this
Court to: sit in judgment over the wisdom of the Parliament in the framing of
the its policy. 1he discr mination in the matter of granting relief to own capital
to the exclusion·'of borrowed capital in pursuance of a policy cannot be said to ··~
be violative of Art. 14, as the two classes of capita!, though forming a part of
the totarcapital of theJundertaking, are distinct and they stand on a different
G footi'1g. A classificationlbetween these two classes of capital for encouraging
investment of own:capital in setting up new industlial undl!rtaking, cannot be
held to be unreasonable and unjustified. [769H; 770A-GJ
8. The mere existence of an invalid rul~ without any challenge for any
length of time does not effect the question of validity of c,the rule and cannot
render a rule otherwise invalid to be valid only on the ground that the rule had
· remaineg in existence without any challen~e for a number Qf years.[76~FJ

"
LOMA MACffiNES ~. UNiON 701
A Proprietary Articles Trade Associatian v. Attorney General for Canada,
[1931] A.C. 310 ; Campbell College Belfast (Governors) v. Commissioner of
Valuation for Northern Ireland [1964] I W.L.R. 912; and Kera/a State Electri-
city Board v. Indian Aluminium Ltd., [1976] I S.C.R. 552; relied on.
9. The other impugned provision of the rule, presribing that capital
employed should be computed on the basis of the capital employed on the
fir1t day of the year, must on the proper construction of the section be also
JI held to be invalid. The section clearly provides that the deduction to _be
allowed is to be computed in the prescribed manner in respect of the pre.
vious year relevant to the assessment year, The deduction to be allowed is
on the profits and gains of the undertaking earned in the relevant ycbar in
respect of the previous )'ear relevant to the assessment year. Profits and
gains which are to be taken into account are the profits and gains earned in
the relevant year and the year must necersarily mean and include the whole
of the year and not some days or months of the year. The capital employed
c for earning the profits and gains during the whole year must necessarily be
the capital which is entitled to the benefit of the section. Capital employed
on the 1st day of the year does not produce the profits of the entlre relevant
year, unless the very same amount of capital r-emains employed throughout
the year. It does not usually happen and in any event it may not bapp~n.
Therefore, by prescribing the 1st day of the year to be date of computation
' of the capital employed, the capital employed during the whole year is
D sought to be denied by the rule the benefit to which it is entitled under the
section. This provision, therefore, is clearly contrary to and inconsistent
with the specific provision of the statute, as by fixing the 1st day of the Year
to be the date of computation of the capital employed for the year, the rule-
making authority is seeking to deny the benefit conferred by the statute.
(7670-G]
10, The power and competence of the Parliament to amend any
statutory provision with retrospective effect cannot be doubted, Any retros..
E pective amenriment to be valid n1ust, however, be reasonable and not
arbitrary and must not be violative of any of the fundamental rights guaran.
teed under the Constitution. The mere fact that any statutory provision has
been amended with retrospective effect does not by itself make the <imeD.d-
mcnt unreasonable. Unreasonableness or arbitrariness of any such amend-
ment with retrospective effect has necessarily to be judged on the merits of
the amendment in the light of the facts and circumstances under which such
F
amendment is made. In considering the question as to whether the legis-
lative power to amend a provision with retrospective operation has been
reasonably exercised or not, it becomes relevant to enquire as to how the
retrospective effect of the amendment operates. [776H; 777A-C]
11. A Valdidating Act validating any fiscal provision with f..!tros-
pective operation is usually held not to be unreasonable or arbitrary. In
the case of any Validating Act, 1he intention of the Legislature is generally
.G
made sufficiently clear in the section or in the Act which is declared invalid
on account of some flaw or defect which is within the competence of the
Parliament to rectify. There is in effect and substance no imposition of any
new tax for the earlier years by virtue of retrosoective operation and the
retrospective operation merely validates the levy already imposed and
possibly collected· This is done in public i11terest for properly regulalin$
H
~02 SUPREMB COUllT REPORTS [1985] 2 s.c.R.
the fiscal structure and to relieve the Government of any financial .burden 'A
by way of refund or taxes collected for enabling the State to implement its
budget. Validating Act' stand on different footing. [778A-C]

12, By the present amendment the Parliament is seeking to validate
not any provision of the statute declared invalid because of any flaw or
defect, as there was none, but is seeking to validate an invalid rule which had
s'ought to deprive the assessee of the benefit which the Parliament had clearly
bestowed on the assessee by the section. [781G]

, , 13. The withdrawal with retrospective effect by amendment of any
finaD\:l&l benefit or relief granted by a fiscal statute must ordinarily be held
to' be unreasonable and arbitrary. Such withdrawal makes a mockery of a
·'beneficial statutory provision and leads to chaos and confusion. Such with-
, . dr3.wal in effect results in the imposition of a levy at a future date for past
.,iYear:s for which there was no such levy in the relevant years. The imposition
- of ~ny fresh. tax with retrospective effect for years for which there was no
suCb levy is bound to operate unduly harshly on every assessee who is
'entif.led to arrange and normaliy arranges his financial affairs on the basis of
c
, the law as it exists. Such retrospective taxation imposes an unjust and un-
warranted accumulated burden on the assessee for no fault on his part and
the assessee has to face unnecessarily without any just reason very serious
'"financial and other problems. lmposition of any tax with retrospective
' effect 'for years for which no such tax was there, cannot also be considered
" to be just and reasonable from the point of view of revenue. The years for
~ which levy is sought to be imposed with retrospective effect had already
passed. and there cannot be any proper justification for imposition of any -D
fr.esh tax for those years. Such retrospective taxation is likely to disturb
and unsettle the settled position ; and because of such imposition of retros-
pective levy for the years for which there was no such levy, assessments for
, those ye_ars which might already have been completed and concluded will
get upset. If the State is in need of more funds, the State instead of seeking
to levy .any tax with retrospective effect can always take appropriate steps to
· ·coUect any larger amount so required by imposition of higher taxes or by
· other appropriate methods. [781H; 782A·El
Epari Chinna Krishna .r.Joorthy, proprietor Epari Chinna Moorthy and E
Sons, Berhampur, Orissa v. State of Orissa, [1964] 7 S.C.R. 185; Rai Ram
Krishna & Ors, v. State of Bihar (1964] ! S.C.R, 897; Jawaharlal v. State of
Rajasthan & Ors, [1966] 1 S.C.R. 890; Assistant Commissioner of Urban Land
Tax. v, The Buckingham & Carnatic Co. Ltd., (1970] 1 S,C.R. 268 ; Ml s
Krishnamurthi & Co. Etc. v. State of Madras & Anr .. [1973] 2 S.C.R. 54 and
"Hiril Lal Rattan Lal etc. etc. v. State of A.P. & Anr, etc. etc., (1973] 2 S.C.R
502 and State of Gujarat v. Ramanalal Kashake Lal Soni, (1983] 2 S.C.C. 33.
14. To establish arbitraririess or unreasonableness it is not necessary
F
tO prove that the undertaking of the assessee will be completely crippled and
will have to be closed down in consequence of the withdrawal of the relief
with retrospective effect. The operation of the retrospective amendment is
bound to have reasonable possibility of the business of the assessee being
adversely affected and seriously prejudiced. In th:: absence of any justifiable
ground and any serious prejudice to the interest of Revenue, retrospective
·ame~dment establishes unreasonableness and arbitrariness. The retros-
pective amendment. therefore, is violative of Art. 19(1)(g) of the Constitution. G
[781C-DJ
: ., 15, There is no reason as to why there should be any'difficu}ty in
. coJttputing the relief and in proceeding to con1plete the assessment by grant-
. ,jog the _relief legally available to assessee under s. 801 even a ... tcr the invalid
part of the rule had been struck down. Parliament had also not considered
it _necessary to effect this amendment earlier inspite of the decisions of the
High Courts, although the Parli<lment had introduced other amendments
i~to this section. (781G·H1 · ·
JI
LOHIA MACHINES v. UNION (81ugwati, J.) 703

ORIGINAL JURISDICTION : Writ Potition Nol. 4509, 4542-43 etc. A
of 1980 (Under Article 32 of the Constitution of India)

N.A. Palkhivala, B.K. Mohanti, Ram Panjwani, T.A. Ramachan-
dran, D. Pal, A.K. Sen, M.M. Abdul Khader and G.C. Sharma, Dinesh
Vyas. T.M. Munim, S.P. Me1ha, Ramesh Diran, Srinivasmurlhi, B
Barish N. Salve, Homi Raina, J.B. Dadachanji, Ravinder Narain,
O.C. Mathur, Mrs. A.K. Verma T.M. Ansari, Miss Rainu· rWalia,
D.N. Mishra, S. Sukmaran, P.K. Ram, H.M. Dilia, Adiiya Narain,
Ashok Sagar, Vijay Panjwani, Raj Panjwani, S.K. Bagga, H.K. Puri,
C.S.S. Rao, La/ii Kumar Gupla, Subhash Du/la, Vimal Dave Mrs.
Janaki Ramachandran, P.H. Parekh, Ashok K. Gupla A.V. c
Rangam M.K. Gark, Dalveer Bhandari, B. Parthasarthi, Praveeen
Kumar, Anil Kumar Sharma, As/wk Mathur, R.P. Garg, S.K. Bansal,
P.K. Mukherjee, Dr. V. Gouri Shankrr, K.L. Hathi, Mano} Arora,
D.K. Chhaya, Mrs. Hemantike Wahi, N. Sudhakaran, KN. Bhatt,
V.K. Verma, M. L. Lahoty, Hrishikesh Roy, Nassem Ahmed, S.K.
Jain, M.M. Kshatriya, M. Seal. D.N. Gupta, H.P. Ranian, A.B. D
Rohtagi: C.S. Aggarwal, B. V. Desai, M.L. Verma, M.R K. Pillai,
B.D. Sharma, Kai/ash Vasdev, 0.P. Vaish, Santosh K. Aggarwal,
P.K. Bhindria, A,K. Sanghi, Ravinder Bana, Miss Meera Bhatia,
S.K. Dholakia, V.H. Garpule, S.K. Gambhir, SC. Patel, Sarwa
Mitter, K.H. Kaji, M.N. Shrojj; M.C. Dhingra, T.P. Sundrajan,
E
B.B. Tawkley, K.K. Jain, S.K. Gupla, P. Dayal, A.D. Sanger: Anoop
Sharma, R.S. Sharma, La/it Bhasin, Rankesh Sah"i, Vineet Kumar,
Miss Arshi Singh, A. Sub!Ja Rao B.R. Aggarwala, R.C. Pandey,
Miss V. Menon, Santosh Chatterjee, Alta/ Ahmad and A.K. Panda,
for the appearing Petitioners.

K. Parasaran, Attorney General and Miss A. Subhashin! for F
the Respondents.

The following Judgments were delivered

BHAGWATI, J. These Mil petitions raise an interesting question
of law relating to the interpretation of Section 80 J of the Income
Tax Act, 1961, and on the basis of certain interpretation, they chal- G
lenge the validity of Rule 19A of the Income Tax Rules, 1962 and
also call in question the constitutionality of the retrospective amend-
ment made in Section 80 J. by Finance (No. 2) Act, 1980. The ques-
tions arising in these writ petitions are of considerable importance
since they involve revenue aggregating to crores of rupees and they
have been argued at great length on both sides. H=
704 SUPREME COURt REPORTS 11985) 2 s.c.ll..

A The principal controversy between the parties turns on the true
interpretation of Section 80 J, of the Income Tax Act, 1961 and
hence we may begin our discussion of the issues arising in the writ
petitions hy examining the language of that Section. But before we do
so, we may usefully refer to the genesis of the provision enacted in
Section 80 J. and the transformation it has undergone from time to
B
time over the years. It is in fact necessary to trace the historical
evolution of this provision in order to arrive at its true interpretation
for, as observed by Cardozo, J. in Duparquet Hua/ v. Evans(') in ques-
tions relating to construction, ''history is a teacher that is not to be
ignored." The first time that a provision of this kind was introduced
c in the Indian Income Tax Act, 1922 was by the Taxation Laws
(Amendment) Ordinance 1949 when Section I 5C was added in that
Act with effect from 31st March 1949. Sub-section (I) of Section 15C
exempted a part of the profits and gains of a new industrial under-
taking from tax and this provision as originally enacted was in the
following terms ;
D
"15C (1) Same as otherwise hereinafter provided, the
tax shall not be payable by an assessee on so much of the
profits or gains derived from any industrial undertaking to
which this section applies as do not exceed six per cent. per
annum on the capital employed in the undertaking, compu-
E ted in accordance with such rules as may be made in this
behalf by the Central Board of Revenue."

The Central Board of Revenue in exercise of the powers con-
ferred under sub-section ( 1) of Section 59 of the Indian Income Tax
Act 1922 issued a Notification dated 15th October 1949 making the
F
Indian Income Tax (Computation of Capital of Industrial Underta-
kings) Rules 1949 for computation of capital employed in the indus-
rial undertaking as envisaged in sub-section (I) of Section l 5C. Rule
3 of these Rules in so far as material provided inter alia as follows :

"Rule 3 (I) For the purpose of Section 15C of the
Act, the capital employed in an undertaking to which the
G said section applies shall be taken to be-

(a) in. the case of assets acquired by purchase and entitled
to depreciation-

H (!) 297 us 216
tollIA MACfllNBS v. UNION (Bhagwati, J.) 70)
, (i) if they have been acquired before the computation A
period, the written-down value on the commencing
date of the said period ;
(ii) if they have been acquired on or after the commen-
B
cing date of the computation period, their average
cost during the said period ;
(b) in the case of assets acquired by purchase and not
I~ entitled to depreciation -
(i) If they have been acquired before the computation
period, their actual cost to the assessee ; c
(ii) if they have be\'n acquired on or after the commen-
cing date of the computation period, their average
cost during the said period ;
(c) in the case of assets being debts due to the person
carrying on the business, the nominal amounts of those D
debts;
(d) in the case of any other assets the value of the assets
when they became assets of the business provided that
if any such asset has been acquired within the computa-
• tion period, only the ·average of such value shall be
taken in the same manner as average cost is to be com-
puted.
-- .
E
(2) Where the price of any assets has been satisfied
otherwise than in cash, the then value of the consideration
actually given for the asset shall be treated as the price at
which the asset was acquired.
(3) Any borrowed money and debt due by the person
carrying on the business shall be deducted and in particular F
there shall be deducted any debts incurred in respect of the
business for income-tax and super-tax or business profits
tax or for advance payments due under any provision of the
Indian Income Tax Act, 1922, or for any sum payable in
relation to business profits tax under section 13 of the Busi-
ness Profits Tax Act, 1947 (XXI of 1947) :"
G
The process of computation of "capital emplo}ed in the under-
taking" according to this Rule consisted of two steps ; one of addi-
tion of the value of assets of the industrial undertaking arrived at on
the basis of different formulae according to the nature and !he date
of purchase of the assets and the other, of deduction of "any borro-
wed money and debt due by the person carrying on the business". H
706 SUPREME COUllT REPOR rs [1985) 2 S.C-R.
A The significant point is that borrowed monies and debts due from
the assessee were excluded in computation of "capital employed in
tbe undertaking" by reason of sub-rule (3) of this Rule.

The Taxation Laws (Amendment) Ordinance 1949 was replaced
B by thejTaxation Laws (Extension to Merged States and Amendment)
Act 1949 which came into force on 3 Jst December 1949 and by
Section 13 of this Act, Section 15 C was continued and though some
minor modifications were made, sub-section (I) which granted the
exemption remained unchanged. Sub-sections (2), (4) and (6) suffe-
red some minor changes and, as reenacted, these sub-sections read as
c follows :
" (2) This section applies to any industrial undertaking
which-
(i) is not formed by the splitting up, or the reconstruction
A_
of, business already in existence or by the transfer to a 1 A
D new business of building, machinery or plant used in a
business which was being carried on before the !st day
of April, 1948 ;

(ii) bas begun or begins to manufacture or produce articles •
in any Province in India at any time within a period of
E three years from the I st day of April, 1948, or such
further period as the Central Government may, by
notification in the official Gazette, specify with reference
to any particular industrial undertaking ;

(iii) employs more than fifty persons ; and

(iv) involves the use of electrical energy . or any other form
of energy which is mechanically transmitted and is not
directly generated by human agency :

(4) The tax shall not be payable by a shareholder in respect
of so much of any dividend paid or deemed to be paid
G
to him by an industrial undertaking as is attributable
to that part of the profits or gains on which the tax is
not payable under tbis section .

.(5) The provisions of this section shall apply to the assess-
ments for the years commencing on the 1st day of
April, 1949, and ending on the 31st day of March,
H 1954."
:'
LOH!A MACHINES v. UNION (Bhagwati, J.) 707
A
It is significant to note that though the Indian Income Tax
(Computation of Capital of Industrial Undertakings) Rules 1949 pro-
vided for exclusion for borrowed monies and debts due from the
assessee in computing the capital employed in .the undertaking, the
Legislature, when it reenacted Section I 5C by Section 13 of the B
Taxation Laws (Extension to Merged States and Amendment) Act
1949 did not choose to make any change in this position but conti-
nued the same Rules under sub-section (2) of Section 34 the Taxation
Laws (Extension to Merged States and Amendment) Act 1949. The
Legislature thus gave its approval to exclusion of borrowed monies
and debts in computation of capital employed in the undertakmg and
also made it clear that the word 'computed' has been used by it in
c
this context in the sense of involving inclusion as well as exclusion of
items which might be regarded as part of the capital employed in the
undertaking.

Thereafter from time to time changes were made in Section l 5C
by various Finance Acts but these changes were not substantial of and D
they merely extended from time to time the period of production for
eligibility from initial 3 years to 18 years by suitable amendments in
clause (ii) of sub-section (2) and brought the business of hotel also
within the purview of the exemption and laid down the conditions
for grant of such exemption. We are not concerned with these chan-
ges so far as the present writ petitions are concerned and hence we
need not refer to them in detail. Suffice it to state that the basic E
structure of Section l 5C remained the same and so did the Indian
Income Tax (Computation of Capital of Industrial Undertaking)
Rules 1949. The result was that throughout the period from 31st
March 1949 when Section 15C was introduced in the Indian Income
Tax Act 1922 upto the time that the Indian Income Tax Act 1922
remained in forci~. borrowed monies and debts due from the assessee F
were excluded in computing the capital employed in the undertaking
for the purpose of determining the quantum of the exemption eligible
under Section !SC.

Then came the Income Tax Act 1961 which repealed the Indian
Income Tax Act 1922. Section 15C of the Indian Income Tax Act G
1922 was recast as Section 84 in the Income Tax Act 196!. Sub-
section (I) of Section 84 granted the same exemption in respect of a
portion of the profits and gains derived from any industrial under-
taking or hotel to which that_ Section applied as did sub-section(!) of
Section I SC but a slight change was made namely, that the profits or
41ains elieible for exemption were now to be calcl]lated at "six per H
708 SUPREME COURT AEPORTS [1985] S.C.R.
A
cent per annum on the capital employed in the undertaking or hotel
computed in the prescribed manner" (underlining is ours). The word
'prescribed' according to the definition in sub-section (33) of Section
2 meant prescribed by Rules made under the Act and in exercise of
the powers conferred under Section 29 ', the Central Board of Reve-
B nue made the Income Tax Rules 1962 which contained inter a/ia
Rule 19 prescribing as to how the capital employed in an undertaking
or a hotel shall be computed for the purposes of Section 84. Sub- ;
rules ( !l, (3) and (6) of Rule 19 read inter alia as follows : ;
"19 (!) For the purpose of section 84, the capital
c employed in an undertaking or a hotel to which the said
section applies shall be taken to he-
(a) in the case of assets acquired by purchase and entitled
to depreciation-
(i) if they have been acquired before the computation l
. ,l. ,
D period, their written down value on the commencing
date of the said period ;
(ii) if they have been acquired on or after the commen-
cing date of the computation period, their average
cost during the said period ;

E (b) in the case of assets acquired by purchase and not
entitled to depreciation-
(i) if they have been acquired before the computation
period, their actual cost to the assessee ;
(ii) if they have been acquired on or after the commen-
F cing date of the computation period, their average
cost during the said period ;
(cl in the case of assets being debts due to the person car-
rying on the business, the nominal amounts of those
debts ;
G (d) in the case of any other assets, the value of the assets
when they became assets of the business :
Provided that if any such asset has been acquired within the
computation period, only the average of such value shall be taken
in the same manner as average cost is to be computed.
(3) Any borrowed money and debt due by the person car·
rying on the bn>iness shall be deducted and in particu-
H. lar there shall be deducted any debts incurred in respect
LOHIA MACHINES v. ,UNION (Bhagwati J.) 709
A
of the business for tax (including advance tax) due
under any provision of Act:
(6) In this rule-
(il "average cost" in relation to any asset means such
proportion of the actual cost thereof ast he number
of days of the computation period during which such B
asset is used in the business bears to the total num-
ber of the days comprised in the said period ;
(ii) "computation period" means the period for which
the profits and gains of the undertaking or hotal are
computed under sections 28 to 43A; c
(iii) "depreciation" means the allowance admissible
under clause (i) or clause (ii) or clause (iv) of sub-
section ( 1) of section 32;
(iv) "written-down-value" means the written-down-
value computed under sub-section (6) of section 43 D
as if for the words "previousy ear" the words "com-
putation period" were substituted."

Theere were also several other changes made in Section l 5C
of the Indian Income Tax Act 1922 while recasting it as section 84
but thees changes are not material for the purpose of the present E

- writ petitions and they need not therefore detain us.

It will thus be seen that even under Section 84 of the Income
Tax Act 1961 the same position prevailed as before in regard to
exclusion of borrowed monies and debts in computing regard to
exclusion of borrowed monies .and debts in computing the capital F
employed in an undertaking or a hotel for the purpose of determin-
ing the quantum of exempted profits under that Section. This posi-
tion continued un-interrupted until Section 84 was replaced by Section
81JJ with effect from !st April 1968 by Finance (No 2) Act 1967.
Sub-section (I) of Section 801 brought about a material change in
the provision as it stood in sub-section (I) of Section 84. We shall
have occasion to examine the implications of this change when we G
deal with the arguments advanced on behalf of the parties, but for
the time being it would be sufficient if we indicate this change by
reproducing sub-section '1) of Section 801 as under :
"80 (1) (1) Where the gross total income of an assessee
includes any profits and gains derived from an industrial
\l!ldertakinll or a ship or the business of a hotel, to which
710 SUPREME COURl REPORTS t 1985] 2 S.C,l\,
A
this section applies. there shall, in accordance with and
subject to the provisions of this section, be allowed from
in computing the total income of the assessee, a deduction
from such profits and gains (reduced by the aggregate of
the deductions), if any, admissible to the as5essee under
B Section 80H and Section 80-1) of so much of the amount
thereof as does not exceed the amount calculated at the rate
of six per cent, per annum on the capital employed in the
ind us trial undertaking or ship or business of the hotel, as
the case may be, computed in the prescribed manner in res-
pect of the previous year relevant to the assessment year
c the amount calculated as aforesaid being hereafter, in this
section. referred to as the relevant amount of capital emplo-
yed during the previous year.'

It may be noticed that under sub-section (I} of Section 80J
the benefit of the exemption was extended additionally to profits
D derived from a ship and so far as the quantum of exemption
wos concerned. the formula adopted for calculating it was "six per
cent per.annum on the capital employed in the industrial undertaking
or ship or business of the hotal as the case may be. computed in the
prescribed manner in respect of the previous year reievant to the
assessment year". The new words introduced were "in respect of the
E previous year relevant to the assessment year" Sub-section (2) of
Section 80J said down the period for which the exemption shall be
allowRble and sub-section (3) provided that any deficiency in the
benefit of the exemption arissing on account of the profits and gains
being Jess than the relevant amount of capital employed during the
previous year shall be cgrried forward and allowed as a straight
deduction in computing the total income of the assessee for the sub-
F sequent years subject to the proviso that in no case shall the nefi-
ciency or any part thereof be carried forward beyond the seventh
assessment year as reckoned from the end of the initial assessment
year. Sub-section (4) enacted certain conditions which must be
fulfiled before an industrial undertaking could qualify for the
benefit of me exemption and once of the benefit the conditions
was that the industrial undertaking should not have been formed
G
"by the transfer to a new business of a building machinery
or plant previously used for any purpose." But sub-section
(6) provided by way of an exception that where in the case
of an industrial undertaking, any building, machinery or platn
or any part thereof previously used for any purpose is transferred to
l:J a new business and the total value of the building, machinery or plant
LOHlA MACHINES v. UNION ( Bhagwati, J.) 711

or part so transferred does not exceed 20% of the total value of the A
building, machinery or plant used in the business, then the condition
set out in sub-section (4) shall-be deemed to have been complied with
and the total value of the building, machinery or plant or part so
transferred shall not be taken into account in computing the capital
employed in the industrial uudertaking, So far as the applicability of B
Section 80J to profits derived from a ship was concerned, sub-section
(5) laid down several conditions which were required to be fulfilled
before the benefit of the exemption could be made available in case
of profits derived from the ship.

Since the profits de_rived from an industrial undertaking or a c
ship or the bnsiness of a hotel were eligible for exemption only to
the extent of 6%per annum of the capital employed in the industrial
undertaking or ship or business of a hotel computed in the prescribed
manner in respect of the previous year reievant to the assessment
year, the Central Board or Revenue made Rule 19A prescribing the
manner in which the capital employed in the industrial undertaking, D
ship or business of the hotel should be computed for the purpose of
Section 80J Rule I9A made material alterations in the texture of
Rule 19 and since a considerable part of the controversy between the
parties has turned on the validity of this Rule, it would be desirable
to set out its releaant portions in extenso :
E
"19.A. Computation of capital employed in an indus-
trial undertaking or a ship or the business of a hotel for the
purposes of section 80J-
(I) For the purposes of section 80J, the capital employed
in an industrial undertaking or the business ot a hotel
shall be computed in accordance with sub rules 2) and F
(4) and the capital employed in a ship shall be com-
puted in accordance with sub-rule (5).
( ) The aggregate of the amounts representing the values
of the assets as on the first day of the computation
period, of the undertaking or of the business of the
hotel to which the said section 80J applies shall first be G
ascertained in the following manner :
(i) in .the case of assets entitled to depreciation, their
written down value ;
(ii) in the case of assets acquired by purchase and not
entitled to depreciation, their acutal cost to the H
assessee ;
712 SUPREME COURT REPORTS (1985] 2 s.C.It.
A
(iii) in the case of assets acquired otherwise than by
purchase and not entitled to depreciation the value
of the assets when they became assets of the busi- ( '
ness; ·'
(iv) in the case of assets being debts due to the person
B carrying on the business, the nominal amount of
those debts,
(v) in the case of assets being cash in hand or bank the ;
amount thereof. '
(3) From the aggregate of the amounts as ascertained '·
c under sub·rule (2) shall be deducted the aggregate
of the amounts, as on the first day of the computa-
tion period, of borrowed moneys and debts due by
the assessee (including amounts due towards any
liability in respect of tax), not being-

D (a) in the case of an assessee being a company, the
amount of its debentures, if any, and ~
)
.
(b) in the case of any assessee (including a company)
any moneys borrowed from an approved source for
the creation of a capital asset in India, if the agree-
ment under which such moneys are borrowed provi-
E
des for the repayment thereof during a period of
not less than seven years. -\

Explanation-For the purpose of this sub-rule,- 1<-"

(i) "approved source" means the Government or the
F Industrial Finance Corporation of India or the
Industrial Credit and Investment Corporation of
India Ltd. or any banking Institution or any person
in a country outside India or any of the following
financial institutions, namely ;
(a) a State Financial Corporation established under
G' the State Financial Corporations Act, 195I (LXIII
of 1951) ;
(b) the Industrial Development Bank of India, establi-
shed under the Industrial Development Bank of
India Act, 1964 (XIX of 1964);
(cl the Madras Industrial and Investment Corporation '-.-
of India Limited ; i

H (d) the Re-finance Corporation of Industry Ltd. i
LO!liA MACHINES v. UNION (Biiagwati, J.) ') l J
A
(e) the Life lrrsurance Corporation of India established
under the Life Insurance Corporation Act, (XXXI
of 1956);

x x x x
B
(4) The resultant sum as determined under sub-rule(3)
shall be dimini~hed by the value, as ascertained
' under sub-rule (2), of any investments the income
from which is not taken into account in computing
the profits of the business and any moneys not required
for the purpose of the business, in so far as the aggregate c
of such investments or moneys exceed the amount of the
borrowed moneys which under sub-rule (3) are required
to be deducted in computing the capital.
(5) The capital employed in a ship shall be taken to be the
written down value of the ship." D
> '
Two changes immediately become noticeable. One is that where
as under the Indian Income Tax (Computation of Capital of Indus-
trial Undertakings Rules 1941 and Rule 19, the average costs of
assets acquired by purchase on or after the commencing date of E
the computation period was required to be taken into account in com-
putation the capital employed in the industrial undertaking or hotel,
a deliberate departure was made from this formula and under Rule
19A, assets acquired on or after the commencement of the computa-
tion period were to be left-out of account and only the amounts re-
presenting the value of the assets as on the first day of the computation
period were to enter into the computation of the capital F
employed in the industrial undertaking or the business of a hotel.
The other change made was that though under the Indian
Income Tax (Computation of Capital of Industrial Undertakings)
Rules 1949 and Rule 19, all borrowed monies and debts due from
the assessee were requ red to be deducted in computing the 'capital
employed' in the industrial undertaking or a hotel a certain amount G
of liberalisation was introduced under Rule 19A, providing that
"monies borrowed from an approved source for the creation of a
capital asset in India, if the agreement under which such monies are
borrowed provides for the repayment thereof during a period of not
less than seven years" shall not be liable to be deducted but shall be
taken into account in computing or the business of a hotel for the
purpose of Section 80J. The result was that from and after !st April H
714 SUPREME COURT REPORTS (1985] 2 S.C.R.
A
1968, when Rule 19A came into force, borrowings from an approved
source repayable in not less than seven years started for the first time
to be taken into account in computation of the capital employed in
the industrial undertaking or the business of a hotel, through other
categories of borrowed monies and debts due from the assesseee conti-
B nued to remain excluded from such computation. These two changes
appear to have been made in view of the Interim Re ,>Ort on Rationa-
lisation and Simplification of Direct Taxation Laws by Shri S. Bhoo-
thalingam, where a recommendation was made that instead of the
formula which was being followed upto 31st March, 1968, it would
be desirable to simplify the procedure for computation of capital "by
c basing it on owned capital and long term borrowings as at the begin-
ning of the year, ignoring the fresh introduction of capital in the
course of the year."

This state of affairs continued until !st April 1971 when the
Finance (No. 2) Act 1971 came into force. While introducing the Bill
D which ultimately culminated in the Finance (No. 2) Act 1971, the
Finance Minister made a policy statement on the floor of the House
in the following terms :

"At present, in the case of new industrial undertakings,
ships and approved hotels, profits upto 6 per cent of the
capital employed are entitled to tax exemption for a period
E
of five years. Since debentures and long-term borrowings do
not in any manner represent risk capital and interest thereon
is in any case deducted, it was generosity on the part of the
Government to extend the tax holiday provision even to
such constituents of capital. I now propose that in calcula-
ting the limit of 6 per cent of the capital for purposes of
F tax-exemption, debentures and long-term borrowings will
be excluded.

This single measure will provide the exchequer with
Rs. JO crores during the current year ; the yield for a full
year will be of the order of Rs. 14 crores."

G This policy statement was implemented by the Central Board
of Revenue by amending Sub-Rule (3) of Rule 19A so that after the
amendment Sub-Rule (3) read as follows :
"(3) From the aggregate of the amounts as ascertained
under Sub-Rule (2) shall be deducted the aggregate of the
H amounts, as on the first day of the computation period, of
toliiA MACHINES v. UNION (Bhagwati, J.)

borrowed moneys and debts owed by the assessee (including A
amounts, due towards any liability) in respect of tax."

The consequence of this amendment was that the position as it
prevailed prior to the enactment of Rule 19A was again restored and
all borrowed moneys and debts due by the assessee as on the first day
B
of the computation period became deductible in computing the capi-
tal employed in the industrial und~rtaking or the business of a hotel
for the purpose of Section 80J. This amendment came into force
with effect from 1st April, 1972.

But a serious controversy was sparked off by this amendment c
of Rule 19A. Though right from !st April 1949 upto 31st March
1968, for a period of almost 19 years, all borrowed monies and debts
owed by the assessee were excluded in computing the capital emplo-
yed in the industrial undertaking or the business of a hotel, no chal-
lenge was preferred against the validity of the Indian Income Tax
(Computation of Capital of Industrial Undertakings) Rules, 1949 and D
Rule 19 which provided for such exclusion and no as.essee disputed
the computation of the capital employed in the industrial undertaking
or the business of a hotel made on the basis of such exclusion. It was
only when the liberalisation made under Rule 19A by inclusion of
long term borrowings (repayable in not less than seven years) in com-
putation of the capital employed which liberalisation was introduced
E
from 1st April 1968-was withdrawn with effect from !st April 1972
that some assessees raised a contention for the first time that on a
true construction of sub-sect10n (I} of Section 80 J, the capital emplo-
yed in the industrial undertaking or the business of a hotel would
include long term borrowings since according to plain natural cons-
truction of the words used, they were part of the 'capital employed' F
and Rule 19A sub-rule (3) in so far as it excluded long term borro-
wings from the computation of the capita! employed was, therefore
ultra vires sub-section (I) of Sec. 80J and despite sub-rule (3) of Rule
J9A, long term borrowings were liable to be takeu into account in
computing the 'capital employed' iu the industrial undertaking or the
business of a hotel. This contention was raised for the first time
before the Bombay Bench of the Income Tax Appellate Tribunal in G
M/s. Alim Chand Topan Das v. l.T.O. and the Bombay Bench of the
Tribunal by an order dated 2Hh July 1973 accepted this contention
and held that sub-rule (3) of Rule 19A was in contlict with sub-sec-
tion (I) of Section 80J and hence it was liable to be ignored in com-
puting the capital employed in the industrial undertaking or the
business of a hotel. This decision was however, reconsidered by a H
716 SUPREME COURT REPORTS [ 1985] 2 s.c.R.

A
Special Bench of the Tribunal in M/s. Emco Transformers Limiied
v. l,T.O and the Special Bench by an order dated 26th September
1974 over-ruled this decision and held that there was no confiict at all
between sub-rule (3) of Rule 19A and sub-section (l) of Section 80J
and all borrowings including Jong term borrowings owing from the
B assessee were liable to be excluded in computing the capital employed
in the Industrial undertaking or the business of a hotel. However,
soon thereafter, the Calcutta High Court held in Century Enca
Limited v. I.TO., 107 ITR 123 that sub-rule (3) of Rule 19A in so
far as it directed exclusion of borrowed capital except from an appro-
ved source (this was obviously a case governed by the unamended
c Rule 19A) was ultra vires sub-section (I) of Section 801 and long
term borowings from any source being part of capital employed were
liable to be taken into account in computing the capital employed in
the industrial undertaking or the business of a hotel. The same view
was taken by the Madras High Court in Madras Industrial Linings
Limited v. I.T.O. llOITR 256 and the Allahabad High Court also
D in three decisions namely CIT v. U.P.Hotel and Restaurant Limited
123 !TR 626, Kota Box Manufacturing Company v. I. T. 0 v. 123 !TR
63c aad Rarnpur Distillery and Chemical Limited v. CIT 140 ITR
725 adopted the same view. The same view also prevailed with
the Punjab and Haryana High Court in Ganesh Steel Industries v.
I.T.O. 126 !TR 258 and the Andhra Pradesh High Court m Warner
Hindustan Limited v. I.T.O. 134 ITR 158. The Madhya Pradesh
E
High Court however took a different view and held that sub-rule (3)
of Rule 19A was not in conflict with sub-section (I I of Section 80J
and all borrowings including long term borrowings were liable to be
excluded in computing the capital employed in the industrial under-
taking or the business of a hotel. Vide els CIT v. Anand Bihari Steel
and Wire Products 133 !TR 365 and CIT v. K.N. Oil Industries
F 134 !TR 651. The controversy in regard to the exclusion of long term
borrowings thus gave rise to a conflict of opinion amongst the diffe-
rent High Conrts. There was also another provision in Rule 19A in
respect of which fault was found by some of the High Courts and that
was the provision which required that the 'capital employed' should
be computed as on the first day of the computation period. The Cal-
cntta High Court in Century Enca Limited v. l.T.O. ITR 909 took
G the view that what Section 80J Sub-section (1) required was compu-
tation of capital in respect of the pre~ious year and not as on the first
day of the previous year and therefore Rule 19A, in so far as it pro-
vided that the computation of capital should be made as on the first I
H day of computation period, was ultra vires sub-section (I) of Section
LOHIA MACHINES v. UNION (Bhagwati, j.) 717
A
80J. This view was also adopted by one or two other High Courts.
Since some High Courts took the view that Rule l 9A was ultra vires
sub-section (l) of Section 80J in so far as it provided for exclusion of
long term borrowings and computation of the 'capital employed' to
be made as on the first day of the computation period and in the
opinion of the Government, this view was erroneous and did not cor · B
rectly reflect the intention of Parliament as evinced clearly by the
legislative history of this provision, Parliament, with a view to avoi-
ding confusion and uncertainty which would prevail in the state of
the law until a final pronouncement was made on these two issues by
the Supreme Court, introduced an amendment in Section 80J by the
Finance (No 2) Act, 1980 While moving the Finance (No. 2) Bill c
1980, the Finance Minister said in the course of his speech in the
Rajya Sabha on 24th July, 1980 ;

, "I have received many representations on the amend-
• ment proposed to be made in section 80J of the lncome- D
tax Act with effect from the !st April, 1972 ..... The capital
employed for this purpose is calculated in accordance with
the provisions made in the Income-tax Rules and excludes
borrowed capital. Some High Courts have taken the view
that the provision in the rule is ultra vires the provision in
Section 80J and that borrowed capital should also be inclu-
E
ded in capital base for the purpose of computing the tax
holiday profits. The Bill seeks to transfer the provision of
the rule to section 80J retrospectively from 1st April, 1972.
In several representations, it has been urged that the pro-
posed change should not be made retrospectively. In my
reply to the General Debate on the Budget, J. had explained
that the provision in the Bill seeks merely to give effect to F
the manifest intention of Parliament. I have again given
anxious thought to this question and I am convinced that
both on considerations of law and equity there is absolutely
no case for modification of the provisions in the Bill. Section
80J specifically provides that the capital employed will be
G
computed for the purpose of determining the tax holiday
profits in accordance with the rules and the rules clearly lay
down that the borrowed capital will be excluded from the
capital base for this purpose. Tax holiday provisions have
been on the statute book in one form or the other right
from 1949. Up till 1968, the basis for calculating the capital H
SUPREME COURT REPORTS [1985) i S C.R.
A
employed in an industrial undertaking was set out in the
rules which provided for exclusion of borrowed capital for
the purpose and this position was never doubted. Although
in 1968, the rules were amended to provide for the inclusion
of certain specified long-term borrowings in the capital base,
status quo ante was restored with effect from 1-4-1972. As 1
have already stated in the House, the then Finance Minister
B Shri Y.B. Chavan, had, in his Bu<.lget speech for the year
1971-7 2, unequivocally stated that he proposed to exclude
the borrowed capital from the capital base for the purpose
of determining the tax holiday profits. It is thus obvious that
the intention has always been that borrowed capital should
not form part of the capital emplo.!'ed for the purpose of
determining tbe tax holiday profits. I am, therefore satisfied
c that no change in this regard is called for."

The Finance Bill (No. 2) of 1980 ultimately culminated in the
Finance (No. 2) Act 1980 and by this Act, Section 80J was amended
and sub-section (I Al was introduced with retrospective effect from
lst April, 1972. The newly introduced sub-section (IA) was in the
same terms as Rule l }A, so that the manner of computation of the
'capital employed' in an industrial undertaking or the business of a
D
hotel or a ship remained the same but it was now set out in sub-
section (IA) instead of Rule 19A. The words "computed in the
prescribed manner" which occurred in sub-section (1) of Section
80J were also substituted by the words "computed in !the manner •
specified in sub-section (I A)" with retrospective effect from the
E same date, namely, 1st April 1972.

Mr Palkkiwala, learned advocate appearing on behalf of the
petitioners in some of the Writ Petitions pointed out that the
expression "capital employed ............ in respect of the previous
year" has two dimensions, namely, dimension of quantum and )
F dimension of time. So far as regards the dimension of quantum, Mr.
Palkhiwala urged that the expression "capital employed" in its
legal as well as in its popular of commercial sense must, in any view
of the matter, include long term borrowings and working capital and
on a fair and liberal view, it would also include short term
G borrowings but be was content with submitting that in any event
long term borrowings must be held to be included in the "capital
employed". He pointed out that under the Companies Act 1956 a
loan repayable after one year or more from the date of the balance
H sheet would be a long term loan and it must be held to be part of
LOHIA MACHINES v. UNION (Bhagwati, J.) 719
A
the 'capital employed'. He also contended that even assuming there
was any ambiguity in the expression 'capital employed' it must
necessarily include long term borrowings in the context of Section
80J because Parliament could not have possibly intended to favour
affluent assessees who are able to employ their own capital and to
discriminate against indingent assessees who have to borrow funds
to finance their undertakings. It was also urged by Mr. Palkhiwala B
in regard to the dimension of time, that the concept of 'capital
employed' during or in respect of the previous year is a concept
which must compel attention to the reality of the funds used during
the whole year and not merely on any one single day such as the
first day of the computation period. The argument of Mr. Palkhiwala
based on this premise was that Rule I 9A was ultra vires sub-section
(I) of Section 80J to the extent that it prescribed a mode of compu- c
tation of the 'capital employed' in terms that excluded all borrowed
capital and also provided for computation of the 'capital employed'
' only on the first day of computation peiod and ignored all additional
capital employed during the rest of the computation period. Rule
19A, contended Mr. Palkhiwala, was invalid in these two respects,
since it derogated from the full operative effect of the provisions of D
Section 80J and arbitrarily abridged the scope of the exemption
under that Section by excluding what was clearly part of the 'capital
employed' and ignoring the 'capital employed' throughout the
computation period except on the first day. The conclusion pressed
by Mr. Palkhiwala on the basis of this argument was that long term
borrowings were, in any event, liable to be taken into account in
computing the 'capital employed' and such computation could not E
be made as on the first day of the computation period but was
required to take into account additional capital which might be
employed during the computation period. So far as the amended sub-
section (IA) introduced in Section 80J was concerned, Mr. Palkhi-
wala submitted that this amendment made with retrospective effect F
from !st April 197 l was unconstitutional. as being violative of
Articles 14 and !9(1)(g) of (the Constitution. We need not set out
here the specific grounds on which the amended sub-section (IA)
was assailed by Mr Palkhiwala as offending Articles 14 and 19(1)
(g), since on the view we are taking in regard to the validity of Rule
!9A, it is not necessary for as to examine these grounds urged by G
Mr. Palkhiwala.

\ The learned counsel appearing on behalf of the petitioners in
the other Writ Petitions re-iterated the same grounds with only this H
720 SUPREME COURT REPORTS (1988] 2 S.C.R.
A
difference that according to Dr. Devi Pal, learned counsel appearing
on behalf of the petitioners in one of the Writ petitions, the ·capital
employed' would include not only long-term borrowings as submitted
by Mr. Palkhiwala but also short term borrowings so that all borrowed
monies and not just long term borrowings were liable to be taken
B into account in computing the 'capital employed'. Dr. Gauri Shankar
appearing on behalf of the petitioners in writ petition No. 6188 of
1980 also submitted a separate set of written arguments on the same
lines and supported the main theseis of Mr. Palkhiwala.

c These arguments advanced on behalf of the petitioners were
sought to be refuted by the learned Attorney General appearing on
behalf of the respondents. The learned Attorney General contended
that the expression 'capital employed' was neither a term of art nor
an expression with a definite fixed connotation and it meant different
things in different contexts. It did not necessarily include long-term
D borrowings and sub-rule (3) of Rule l 9A excluding long-term
{
borrowings from the computation of the, capital employed' could not
therefore be said to be in conflict with sub-section (I) of Section 80J.
It was also urged by the learned Attorney General in the alternative
that, in any event, for calculating the relief under sub-section (I) of
Section 80J, the stipulated rate of percentage was to be applied not
just to the 'capital employed' without any further qualification but
E to the 'capital employed ..... computed in the prescribed m1nner". The
manner of computation was left to be prescribod by Rules to be made
by the Central Board of Revenue and according to the learned
Attorney General, computation involved exclusion as well as
inclusion of items which might be regarded as forming part of the
'capital employed' and sub-rule (3) which was an integral part of
F the process of computation laid down in Rnle l 9A did not therefore
derogate from the provisions of sub-section (1) of Section 80J and
was within the mandate of that section. The learned Attorney General
repelled the contention of Mr. Palkhiwala that if sub-section (I) of
Section 80J were read as conferring power on the Central Board of
Revenue to exclude from the computation of the 'capital employed'
G any item or items as it thinks fit without any guidelines being provided
by the statute in that behalf, such power would be unfettered and
unguided and would suffer from the vice of excessive delegation.
The learned Attorney General pointed out that sub-section (I) of
Section SOJ being a provision in a taxing statute, it had necessarily I
to be left to the Central Board of Revenue to decide, having regard
to changin(! economic circµmstances, what should from time to tim~
H
LOHIA MACHINBS v. UNION (Bhagwati, J.) 721
A
be taken to be 'capital employed' for the purpose of calculating the
relief allowable under sub-section (I) of Section 80J and moreover
the Rules made by the Central Board of Revenue in that behalf were
required to be placed before each House of Parliament for its
approval and there was, therefore no excessive delegation involved
in sub-section (1) of Section 80J leaving it to the Central Board of
Revenue to prescribe how the 'capital employed' should be computed fl
and what items should be included and what items excluded. H was
also submitted by the learned Attorney General that the words used
• in sub-section ( n of Section 80J in regard to the computation of the
'capital employed' were not 'capital employed during the previous
year' but 'capital employed ..... in respect of the previous year." The
words 'in respect of the previous year' were deliberately introduced c
in sub-section \I) of Section 80J when that Section came to be
enacted with the result that the 'capital employed' that was required
to be computed for the purpose of Section 80J was the 'capital
employed in respect of the previous year' Rule 19A was therefore,
according to the learned Attorney General, not in conflict with D
sub-section (I) of Section 80J when it provided that the 'capital
employed' in respect of the previous year shall be computed as on
the first day of the previous year. The learned Attorney General
pointed out that if rule !9A was valid in its entirety as contended
for by him, no question of constitutional validity of the newly
> introduced sub-section (IA) could possibly arise because what sub- E
section (IA) did was merely to reproduce Rule I9A ipsissima verba
• with effect from !st April, 1972 and it was clarificatory in nature.
The learned Attorney General also contended in the alternative that
even if Rule !9A was inva' din both respects as submitted by Mr.
Palkhiwala and the other learned counsel appearing on behalf of the
petitioners, the new sub-section (IA) introduced in Section 80J with
retrospective effect from !st April, 1972 did not violate any of the F
fundamental rights under Article l 4 and l 9(l)(g) and was not
unconstitutional or void.

These rival contentions raise interesting questions of law
relating to the interpretation of sub-section (I} of Section 80J and
the validity of Rule 19A. Now there can be no doubt that if the G
attack against the validity of Rule I 9A cannot be sustained and Rule
19A 1s held to be valid in its entirety, it would be unnecessary to
examine the grounds of challenge urged on behalf of the petitioners
-\ against the constitutional validity of the newly enacted sub-section
(IA}, because in that event, sub-section (IA) would be merely enac-
ting in statutory form the provisions in regard to computation of
ff
722 SUPREME COURT REPORTS (1985) 2 S.C.R.
A the 'capital employed' which were in force until then in the form of
rule 19A and the enactment of sub-section (IA) by way of amendment
would be simply clarificatory in nature. The principal question which
therefore arises for consideration is as to whether Rule 19A could
be said to be in conformity with the mandate of sub-section
B (I) of Section 80 J in so far as it is provided for exclusion of all
borrowed monies including long term borrowings from computation
of the 'capital employed' and enacted that computation of the
'capital employed' should be made as on the first day of the compu-
tation period. The answer to this question depends on the true
·"
I
i
-

interpretation of the language employed in sub-section (I) of Section
80J. But before we proceed to consider this question of inter-
c pretation, it is necessary to point out that at least so far as exclusion
of all borrowed monies including long term borrowings from compu-
tation of the 'capital employed' is concerned, the position which
prevailed right from 1st April 1949 to 31st March 1968 for a period
of 19 years was that all borrowed monies due from the assessee were
excluded in computing the 'capital employed' and no one challenged
D
such exclusion as being in conflict with either Section I 5C or Section
84. It is undoubtedly true that merely because for a long period of
19 years, the validity of the exclusion of borrowed monies in
computing the 'capital employed' was not challenged, that cannot
be a ground for negativing such challenge if it is otherwise well
E founded. It is settled law that acquiescence in an earlier exercise of
rule-making power which was beyond the jurisdiction of the rule
making authority cannot make such exercise of rule making power
..
or a similar exercise of rule making power at a subsequent date,
valid. If a rule made· by a rule making authority is outside the scope
of its power, it is void and it is not at all relevant that its validity
F has not been questioned for a long period of time: if a rule is void,
it remains void whether it has been acquiesces! in or not. Vide .,
Proprietary Articles TraJe Associations v. A.G. of Canada. [1931]
A. C. 310: A. G. for Australia v. Quein 95 C.L.R. 529. But when
we are pointing out that for a period of 19 years the exclusion of
borrowed monies from computation of the 'capital employed' was ilot
G challenged by any assessee and the validity of the Indian Income
Tax (Computation of Capital of Industrial Undertakings) Rules
1949 and Rule 19 was not at any time assailed on the ground that
they derogated from the provisions of Section I SC or Section 84, it is
not for the purpose of supporting any plea of acquiescence but for
the purpose of indicating that both the assessees as well as the Revenue
proceeded on the basis that on a true interpretation of the language
ff of Sections 15C and 84, it was within the competence of the Central
LOHIA MACHINES v. UNION (Bhagwati, J.) 723 A

Board or Revenue to exclude borrowed monies in computing the
.,
> r 'capital employed'. Not only the assessees and the Revenue but
Parlialll~nt also approved of this interpretation of sections I5C and
84 and posited the validity of the Indian Income Tax (Computation
of Capital of Industrial Undertakings) Ru.le 1949 and Rule 19 which
provided for exclusion of borrowed monies in computing the 'capital
B
employed' for the purpose of giving relief under these Sections.

.. •
l.
Though the Indian Income Tax (Computation of Capital of Indus-
trial Undertakings) Rule ! 949 provided in so many terms that bor-
rowed monies shall be deducted in computing the 'capital' employed'
for the purpose of Section I SC as originally introduced in the Indian
Income Tax Act 1922, Parliament when it re-enacted Section !SC by c
the Taxation Laws (Extension to Merged States and Amendment) Act
1949, did not seek to make any change in the Indian Income Tax
(Computation of Capital of Industrial Undertakings) Rules 19·49 but
. continued the same Rules providing for exclusion of borrowed monies.
Parliament clearly proceeded on the hypothesis that the Indian
•A.
Income Tax (Computation of Capital of Industrial Undertakings)· D
Rules 1949· in so far as they provided for exclusion of borrowed
monies in computation of the 'capital employed' were within the
mandate of' Section I SC and placed its seal of approval on such
exclusion of borro •ed monies in computing the 'capital employed'
for the purpose of Section !SC. The Indian Income Tax (Computa-
tion of Capital of Industrial Undertakings) Rules 1949 thereafter E
continued in force until 1st April 1962 when the Indian Income Tax
Act 1961 came to be enacted and the Income Tax Rules 1962 were
made. During this period Section l 5C was amended several times
but though Parliament knew full well that the Indian Income Tax
(Computation of Capital of Industrial Undertakings) Rules 1949
F
provided for exclnsion of borrowed monies in computation of the
'capital employed'. Parliament did not make any change in the
statute with a view to clarifying that borrowed monies were not
intended to be. excluded. Even when the Income Tax Act 1961 was
enacted, Parliament continued to use the same language in Section
84 as it did in Section 15C and did not make any change in the G
language with a view to indicating that the Indian Income Tax
(Computation· of Capital of Industrial Undertakings) Rules 1949
which had been made under Section 1SC did not correctly reflect
the intention of Parliament. If Parliament thought that the Indian
Income Tax (Co nputation of Capital of Industrial Undertaking)
Rules 1949 in so far as they provided for exclusion of borrowed
monies were not in conformity with its intention, Parli~ment could
H
724 SUPRllME COUR!I' Rl!!IOIITS [1985] 2 S.C.R.
A
have easily made specific provision indicating its · intenti<ln In .tire
clearest· terms when it enacted Section 84 in the Income TuAct
1961. Even after the enactment of Section 84, when Rule 19 was
made with a view to giving effect to Section 81, that Rule again
excluded borrowed monies from computation of the 'capital employed'.
B It is interesting to note that though the Income Tax Rules 1962
which included Rule l 9 were lai1 before each House of Parliament
soon after they were made as required by Section 296 of the Income
Tax Act, 1961, neither House of Parliament expressed its disapproval ;
~

of Rvle 19 or made any modification in it and both Houses of Parlia· I
ment thus gave their approval to Rule 19 knowing full well-and this
c p·resumption niust be made in favour of members of eaeh·House,,.;that
that Rule provided for exclusion of borrowed monies in computation
of the 'capital employed'. We may make it clear that when we make
I
this comment. we should not be understood to say that even if.a Rule
purporting to be made under a statute is outside the authority confeFred
by the statute, It would still be valid and have the force of law if it
D
is placed before each House of Parliament and is not disapproved
by · either Hons. But what we wish to point out is that by not
disapproving of Rule· 19, Parliament accepted the validity of the
assumption that exclusion of borrwed monies in computation of the
'capital employed' was_ permissible under the terms of Section 84 .and
E cleat'ly indicated that ~uch exclusion of borrowed monies had its
approval, Even after Section 84 was enacted and Rule 19 was made,
there were several amendments made in Section 84 from time to time
but on none of those occasions w.as any opportunity taken by Parlia-
ment to set at naught what had been done by Rule 19 by way of
exclusion of borrowed monies, assuming that Parliament .did not
approve of it The result was thatthe exclusion of borrowed monieSciD
complitatlon'of the 'capital employed' continued and that was plainly
and indubitably in accord with the intention of Parliament. But wlu:n ·
Section 80J replaced Section 84 and Rule 19A was made with· a view
to giving elfect to Section 80J, a change was deliberately brought about
and Jong term borrowings from approved sources were brought into
G computation of the 'capital employed'. This change was, however, short
lived and vJith effect from !st April, 1972 the original position.was:
restated. Tl\e Finance Mini~ter mad it clear by way of a preface in his
Budget Speech that he proposed to exclude debentures and long term
,.
borrowings in computation the 'capital employed' and in accordance.
with this statement Rule l 9A was amended so as to exclude all.
borrowed monies. The amending Rule was laid before.each House.
of Parliainent and there was no dissent: or disapproval. It is not
a. possible to believe that despite the statement of the Finance Minister
' ) . LOH!A MACHINE!I' ••. UNlfJN•(Bhagwati, J) 725
» , on,f.be' lloor of the House.and the 11l<!Gi11310I,the. amen~Jing Rule A
·./ before'. each House, Parliament was not awai-11 'M 1tq what the amended
Rule l9A provided. Parliament must be P:fe!!Umed to hav.e known
that Rule 19A was amended in accordance with the statement of the
Finance. Minister and the amended Rule 19A provided for exclusion
of borrowed monies in computing the 'capital employed' and yet B
Parliament if it thought that such <litClusion was contrary to its trµe
l
J' , intent, did not take any. steps to rectify the position, Then again,
while moving Finance (No, 2) Bill 1980, the Finance Minis.ter stated
on tile floor of the House that the intention of Parliament has.always
been to exclude borrowed monies in computing the 'capital employed'
and therefore Section SOJ was sought to be amended by incorpo- c
rating Rule 19A in Section with retrospective effect This legislative
history traced· by us Clearly shows beyond doubt that Pa.rliament
tluongoout, save in respect of the period from !st April 1968 to 31st
/· March, 1972, approved of exclusion of borrowed monies in compu-
~ ting the 'capital employed.:. :as being in conformity with its intention
and regarded such exclusfon as being within the terms qf Section I 5C D
or Sectfon 84 or Section 80J as the case may be.

Now we turn to consider the language of sub.section. (IJ of
section &OJ and while doing so, we may poii1t out that so, f11r 11~ this
question is concerned, there is no material difference. l:>etween the
> la11g11age of snb-secfjqn .(l) of Se~tion 801 and the lllnguage .<!fits E
) .. pre<!ecessor Sectiol)l;,namely, Section 15.C sub,sectiqn (l).and Section
84 s11b-section (!).The words use,d in S.ub-section (I) of. ~e~ti,on 80J
are:"capital employed .. ., .. comp\lted in the pres9ribed m~imer';. '.J:'he
stlltgt!lry rllte of petcenl~ge for, tb.<1< purpose of cajculati,n,g the; relief
aJlQ,wfl.bJe 11nder S\l,b·s~qtion m of, S"1tion 80J, is to be .appljed not
R
jlJ!!t; to: th~.. 'PllPital· ,tlmployec!\ ~yto 1to, .,tbe; ''capital employed.,., ..
cO.IIl!lllle\\;jn t\le .!lr~ribell ml!D»~Ji";. We shall Pf@llen1'yco,q.~d.er
l,r<; tl)ll Cl(i'ecl., of the qu~Iifying words, "cooiputed in .. the preSJ<rib~d
Jll<l!l!ler'', but .before, we. do that, we mµst ~first :exarn)µe,the tru~
ml!aning;rndJoiporl; ~f. the expression 'capital .emplpyep', for it 1s
on thm ~'llPrllSSio.n ns~d in the Section· thatthe stroµgest reliance was G
plac;~d, by ;)Yir. l'alkb.iwala and the entire argument advanced by him
r.e.sted. ,M);. Palkhiw11laand the·other. learned counsel following upon
him. · str9ngjy CO!;(tended that the expression 'capital, emp)oye!I'
aGcq,i:ding to its commonly accepted meaning as also accori:Iing \o
·'"\the c,ounotation it .has acquir~d i~ commercial usage and accpqn-
. tancy practice, w 0 uld necessarily mcludes, at the least, long tqm
boqowjngs. and the Central Board of Revenue cannot uqder ·lhe guise
of making I\ rule for. computation 9f the '.capital employed', ~llcl\lQC
'726 SUPREME COURT R~RTS [ 1985} 2 S.C.R.
A
long. term borrowings which constitut~ an essential part of the 'capital , ~
employed'. That would be clearly derogating from the provisions of '>·
Sub-section (I) of Section SOJ and would be totally impermissible. '.
Now this contention would have had some force if the premise on
which it is based were well-founded. But we are unable to agree with
B Mr. Palkhiwala and the other learned counsel supporting him that
'capital employed', either in its legal sense· or in commercial parlance .J
of accountancy practice, necessarily and· always includes long term ~ '
borrowings.

c Mr. Palkhiwala relied upon ·.passages from various text books
on Business Management and ·Accountancy in support of his_ plea
that 'capital employed' must necessarily include long term borrowings.
One of the text-books on which reliance was placed by Mr. Palkhi-
wala was ''The Internal Finance of Industrial Undertakings" by T.G. >.
Rose where it is stated that "the total money in the business at any .L "
D moment or the 'total capital employed' is to be found in the figure
recorded at the foot of the assets columu in the balance-sheet, less
any fictitious assets". This passage equates 'total capital employed'
with the total money in the business at any moment. It is significant
to note that the reference here is not just to 'capital employed' but
to 'total capital employed'. Moreover this expression bas been used. -1(
E
in the context· of performance evaluation through profit resource
•,
ratio and this is made amply clear by a passage whil'h occurs ..
subsequently in the same text book where it is observed that the
"question of whether the T.C. is owned or borrowed is immaterial
for this control figure. ·The Company is employing so much capital
F in its·trading, and therefore that capital must turn over, through
sales, to an extent sufficient to. provide a proper return on that
capital" Mr. Palkhiwala also cited an extract from "Terminology of
Coirt Accountancy" published by The Institute of Cost and Works r~
Accountants, UK. (October 1967} where the expression 'capital
employed' is explained but we fail to see bow this explanation can ""
G assist the argument of Mr. Palkhiwala,. because according to this ,,
(;,

explanation the expression 'capital employed' can mean any one of
the following three things : 'Total Capital Employed' which may
include loans or 'Total Shareholders' Capital Employed' or 'Total
Equity Capital Employed'. 'Then, reliance was placed on certaion
passage from "The Director's Guide to Accounting and Finance" .(."--·
by M.G. Wright dealing with the profitability ratio. The author
points out in this passage that the "principal ratio that measures
B profitability is the return on 'capital employed', This is a ratio which
· i.ollrA !.rA.cil1'NEs v. UNION (hhagwati, 1.)
measures output to resource-use-in this case profit earned to the A
capital required to earn that profit" and then, in this context
proceeds to add that 'capital employed' is generally accepted to mean
the total of all the long term funds employed, that is, all sharehol·
ders' funds plus long term borrowings. The long term borrowings
are regarded as forming part of the 'capital employed' .because the
object is to measure the profitability with reference to the total B
funds invested in the undertaking. This passage does not, in our
opinion, lay down that the . expression 'capital employed' must
necessarily and in all contetxs include long-term borrowings. Mr.
Palkhiwala also relied on certain Balance Sheets given in "Modern
Published Accounts" by R.S. Waldron and E.H D. Sambridge which
undoubtedly treat long-term borrowings as part of 'capital c
employed'. But it may be noted that this is done for determining the
profitability ratio by measuring profit as a percentage of Operating
CaJ?ital Emloyed and interestingly, the expression 'capital employed'.
according to these Balance Sheets, also includes short-term
borrowings. Mr. Palkbiwala also relied . on "Inter-Firm Comparison D
of Financial Performance" by the Bombay Textile Research.Asso-
ciation and "Dictionary of Business and Managcmcnt"by K.C. Parekh
where 'capital employed' is defined to mean the total of share capital,
reserves and long-term borrowings. But again it may be noted that
this definition is for the purpose of evaluating financial performance
and efficiency of management, the true measure of which can be E
ascertained by taking the ratio of profit earned to the total funds
employed in the business. Then reliance was placed on "Principles
) and Practice of Management Accountancy" by J:L.Brown, "Finan·
cial Manager's Job" by Elizabeth Marting and Robert E. Finley and
"Glossary of Man~gement Accounting Terms" by the Institute of
Cost & Works Accounting of India, where the expression 'capital F
employed' is understood to mean share capital, retained profits and
long-term borrowings. But it may be pointed out that in these text-
books also, the expression 'capital employed' has been used in the
context of efficiency of business which is naturally measurable by
considering what is the profit derived from deployment of the total
funds in the business and since long term borrowings are also
deployed in the business, the profitability of the undertaking cannot
be evaluated without taking into account such long term borrowings
which have gone in the earning of the profit. It is significant to note
that even in "Principles and Practice of Management Accountancy"
by J.L. Brown there is a highly revealing statement that in regard
to 'capital employed', "there is a good deal of controversy among
accountants over which ite~s should be included''. We .may tben
H

!---
l19s5J 2 s.c.tl.
A
refer to ~riot her· .text:book relied'· ()n by Mr. 'Palkhiwala, naiircly,
''Finance For rhe ·Non-Accountant" by L E. Reckley. The paS!!age
from t)lis text' book cited by' Mr. Palkhiwala far from helping his
argument, militates against it, for it concedes ih so many terms that
"the expression 'capital employed' does have several possible inter·
B pretation" and proceeds to add tha.t 'capi ta! employed' is frequently
referred to as the total assets possessed by the concern and shown
in its balance sheets, no deductions being made for any liabilities but
"such is not afl'of the possible combinations leading to an assessment
of the capital employed by any Company." It is no doubi true that
.there are observations in "Principles and Practice of Managemeni"
c by E.F.t. Brech as also irf'Table 2 annexed to Information Note
No. HJ on "Return on Capital Employed" prepared by Ail 'll!clfa:
Man~gement Association which support the Plea of Mr. Palkhiwala
that 'capital employed' includes (unds received from Joan creditors
bµt again it must be remembered that this meaning is giveO' to· the
expression 'cap.ital employed' in the context of evaluation of pei-for·
D
mlnce and profitability by determining. whether the concern has
,
earned a satisfactory annual profit, having regard to the expected
r.eturn on .the total funds employed in the business.

E : The balance sheets of some Companies were produced before
us by Mr. Palkhiwala with a view•to showing that even according
to accountancy practice, long.term borrowlngsare included in 'capital
employed' but we do not think that the. se balance sheets assist the
argument of Mr. Palkhiwala, for all these balance sheets are for years
subsequent to the .arising of the present.. controversy and in most of
F
tllrese balance sheet_s, the w.rds variously .used ;i,r.e "Total Funds
Employed", "Source of Funds'', ,'.'Funds Employed" and "Net AliSets_
Employed" and ti1ey do not therefore throw any parti9ular light on
the question before us. In fact, in the balance sheet of SOlllll,l!Y
Pilkihgtons •Ltd. for the year ending 30th. June 1978 . prod11ced . ,by
G the learned Attorney General ·orl behalf of th..e Rewnue, .th~ *SF~iP:
tion of the ·heading given is ''Capital Efilj)loyed and ,ao,ro}Vi~''.,
which shows that there is na uriiforin practice. aftreatiQ&~OJlil~rlll.
borrowings as part af 'capital employed\ fin ·acco.untanQY.tP~i!;e.
Mr. Palkhiwala also relied on certain extracts from C.arter'f f'Ad\'.~n"
ced Accountsl·' and Spicer and Pegler's "Book keeping and Aoc_ou.nts"
but these extracts dorm! more than· 6bow that in certain .contexts•
the expressi6n 'capital efinol'>yed' would include .Jong ·<term
H borrowings. ·"

··-·:
toHIA MACHINES v. UN/bN (Bhaglvati, J.) 729
Now' tlie learned A tt<lrney General appearing on behalf of the A
Revenue did not dispute proposition that in a given colltext the expres· ·
sion 'capital employed' mhy include long term borrowings. But his
contention was that.this expression has no fixed definite connotation
which would necessarily include long term borrowings and that in a
given situation, it may include long term borrowings or it may not.
B
The meaning and content of the expression 'capital employed' would,
contended the learned Attorney General, depend upon the context
and the circumstances in which it is used. The learned Attoflley
' General pointed out, and in our opinion rightly, that the various
passages relied on by Mr. Palkhiwala in support of his contention
dealt mostly with business management and profitability and in those G
passages, the expression. 'capital employed' was used in the context
of business ·efficiency and performance evaluation with a view to
measuring profitability by determining the capital output ratio and
that is the reason why it was said in those passages that 'capital
employed' would include long term borrowings. We agree with the
Learned Attorney General that the expression capital employed' has D
a variable meaning depending on the context in which it occurs and
the purpose for which it is used. There are a number of text-book
authorities which ·support this view in regard to the scope and ambit
of.the expression 'capital employed'. Even J. Batty in his book on
"Management Accountancy"-a book strongly relied on by ·lvlr.
Pa!,\chiwala·has observed that "there is no generally accepted defini- E
tion of the two essential terms (I) Capital Employed and (2) Profit".
)
He then proceeds to observe "Capital employed is used to describe
the investment made in a business. As noticed earlier, there is no
generally 'accepted definition of the term. Somo accountants think
of .one thing, whereas others think of another. One delinitiow may
F
Include certain assets and the other exclude them altogether.
Anol>her definition ma)' consider ordinary share capital, thus measu-
rinirhow much is actually invested by shareholders." He points out
'thfe!:opossible definitions of 'capital. employed', namely, (I) Gross
Capital Employed, (2),Net Capital Employed and (J) Proprietors' Net
Capital Employed. Bo also Members' HandbOdk of the Institute of G
Chartered :.Aecoontants in 'Englatid and Wales affirms that the
. e&pression' 'capitill' employed' means different things according to
th& purpote-for which it is used a:nd points out that there are various
m~ods· of computing 'capital employed' and classifies. 'capital
e111ployed' into , three .:ategories, namely, (I) Share capital and
res~rves; (2)Equity capital and 1eserves;and (3) total capital employed
which would include debentures and other long term liabilities. To
the same effect we find observation in "Framework of Accountancy" u
?:lo sui>REME couitt llEi>okts [\98S] 2 s.c.1t
A by C.C. Magee where it is said "There are several possible defini-
tions of the term 'capital employed' ...... The new worth of the
business, ..... comprises ..... tbe 0,riginal capital contribution together
·with retained profit .. From the view point of ownership the net
worth Mpital employed in the business and it is on the basis of this
figure that ownership will judge the success or failure of manage-
B
ment." Of course, while making this statement it is conceded by
the author that "a view is taken by some that capital employed
should be defined as net worth plus long term loans" but the author
maintains that "the effective capital, or capital employed in a
business ...... or the net worth ...... is always Rule to the original
c capital plus retained profit less any loss that may have been incurred.'
So also in Business Accounting I by B. E. Elliott the expression
'capital employed' is used in more senses than one and it is pointed
out that the income used to calculate the rate of return must be
appropriate to the capital employed to generate that income. Carter
in his book on "Advanced Accounts" (5th Edn. by Douglas Garbutt)
D utters a warning against describing a borrowing, whether long·term
or short, term as capital. He says; "Money borrowed by means of
ordinary Joans, mortgages, debentures, bonds etc. is frequently
spoken of as Loan Capital. Most accountants, however. consider it
loose to describe such a liability as capital." We find that Palmer
also in bis 'Company Law' disapproves of the expression Loan
E Capital and emphatically state that this phrase, though frequently
used in business circles, is in the eyes of a lawyer a contradiction in
terms, because it is difficult to see how a debet can ever be regarded
as capital. Jn fact, the looseness of the expression 'capital' is emphasise.d
also by Gower in his "Principles of Modern Company Law" where
he states that "Unhappily capital is a word of many different appli-
F
cations and even in the legal, economic and accounting senses with
which we are concerned, it is used loosely and to describe different
concepts at.different times although its users do not always recognise
the fact." It will thus be seen that there is no unanimity amongst
accountants and lawyers in regard to the question whether 'capital ~I
I)
G employed' necessarily includes long term borrowings. It is significant
\
to note that even the High Courts have differed in regard to the "11
true meaning and content of the expression 'capital employed', the
High Court of Madhya Pradesh· taking one view ·and some of the
other High Courts taking another view. There can be no doubt that
the expression 'capital employed' is susceptible of more than one
interpretation and it may include long term borrowings or it may
H
LoillA MAi:IiiNES v. UNION (Bhagwati, j,) 131
not, depending on the context and the' circumstances in which it
is used. There is even doubt amongst lawyers and accountants
whether short term borrowings can be regarded as forming part of
the 'capital employed'. So1J1e balance sheets show short term
borrowings as forming part of the 'capital employed' while others
ilo not and even amongst counsel appearing befor~ us though Mr. B
Palkhiwala conc~ded that short term borrowings would not form part
of the 'capital empoloyed', Dr. Devi Pal vehemently contended to
, the contrary. It is obvious that the expression 'capital employed' is
not a term of art nor is it an expression having a fixed connotation
or meaning but it is susceptible of varied meanings, including or
excluding short term borrowings or long term borrowings, whether
or all categories or of any particular category or cate~ory or cate- c .
gories depending on its environmental context. It is therefore not
possible to accept the contention of Mr. Palkbivala and .the learned
counsel supporting him that tbe expression 'capital employed' has a
fixed definite connotation wliich necessarily and in all cases includes
long term borrowings and it was therefore not competent to the
Central Board of Revenue to truncate the full width and amplitude D
of the expression 'capital employed' by making Rule l9A sub-rule
(3 J excluding long term borrowings in computation of the 'capital
employed'.

It is interesting to note that even during the period from l st E
April 1968 to 31st March 1972 when Rule 19A sub-rule (3) stood
unamended, it is only borrowings from an approved source repayable
within not Jess than 7 years which were includible in computation
of the 'capital employed' and not all long term borrowings. If the
contention of Mr. Palkhivala were correct that all long term borrow-
ings invariably and in all cases formed part of tbe 'capital employed' F
and were liable to be included in the ,computation, the unamended
sub-rule (3) of Rule 19A in so far as it excluded long term borrow·
ings, other than those from an approved source and repayable within
not less than 7 years, would be invalid as being in derogation of the
provisions of Section 80J sub-sectiou (I). But the validity of the
unamended sub-rule (3) of Rule 19A was at no time challenged on G
behalf of the assessees and Mr. Palkhivala and the learned counsel
• supporting him did not seem to contend that the unall\ended sub-rule
(3) of Rule 19A was invalid. Once it is conceded that the Central
Board of Revenue was within its authority in including certain
categories of long term borrowings and excluding certain other
categories in computation of the 'capital employed', it must follow H
[1985] 2 s.c.tl..
¥ ~ 11~ry corollary . t)lat., the Centr,1d Board of Revenue could·
c;q~ajly, ~ithout . exceeding the authority conferred upon.it, exclude
all long term borrowings to which ever category they might
belong. . ·

U is because the expression 'capital employed' has a variable
IJ: meaning that •it has ·been ·enacted by the· Legislature that, for the
purpose.of calculating. the relief allowable under Section 80J sub-
section (I); the statutory pePcmttage'.must be applied to the 'capital
employed as computed in the prescribed manner. How the 'capital
emplgyed' shall be computed is left to be prescribed by the Central
c Board•of Revenue· by making. Rule or Rules under Section 295 of
J the Income Tip: Act; 1961. The process •of .computation would involve ·
both inclusion· and exclusion of-items which may possibly be regardea
as.falling within the.expression 'capital employed'. The Central Board
of Revenue may include some items and exclude some others while
prescribing the manner of computation of the 'capital employed'.
D This is the sense in which the word 'computed' has been consistently
<I used by the Legislature while enacting legislation of this kind.
Turning· to the earliest legislation where the word 'computed' has
been used in relation .to the 'capital employed', we·find that in' the
Excess Profits Tax Act, 1940 for determining the standard profits,
the statutory percentage was required to be applied to the average
E
amouI\t of .capi\al .employed as computed in accordance with the
Sec<md Schedule and the Second Schedule provided for inclusion of "'-·.
certainAtel)ls and e11clusion of. certain others including bo.rrowed '
monies IUJ,d qebts. The Legislature clearly, in this statute, regarded
exclusion of borrowed monies and ·debts as implicit in the process
F of computati 0n of the 'capital employed' or to .put it differently,
·~ according to legislative usage, computation of 'capital employed'
could legitimately il!volve as .part of the process, exclusion of items
such as borrowed monies and debts. So also in the Business Profits•
Tax Act J~41. ~pd.the ~uper Tax. P.rofits Tax Act 1953. the word
'coll)puted' w~& used iq !he ~m~.sense ·as involving in the process
· G · of computation of t\le. 'capital employed', •exclusion of borrowed
• monies. and <j.ebts. Similarly in the Companies (Profits) Sur Tax
Act !964 also, the word 'compµted' has been .used in the same sense.
Of co.urse it. may be pointed out that in this statute th.e word
•
'computed' has.been usedin. relation to the 'capital ofthe company'
and .not in .r~lation to the 'capital employed' but that would
make no difference, because .what we are concerned with here is •the
H I\ sei;i,w in "1¥.h.ich the. wore! ~computed' has been .used and· whetMll·it
.
loil1A MACHINEs v, UNION (Bhagwati, J.)

involves the process of exclusion as well as inclusion and on that
point, the Act analo3ically throws considerable light; The s(atutory
, dedu~tion which roust be made from the char&eable profits for the
•.(
purpose of determining the charge of Sur Tax under this statute is
defined to mean "an amount equivalent .to ten per cent of the capital
of th'e company as computed in accordance with the provisions of
the Second Schedule'; and the Second Schedule after its amendment
by Finance Act 66 of 1976 does not provide for, inclusion of borrowed
monies and dabts in 'computation of the capital of the company
• thoqgh it. provides for inclusion of the. paid U{l share capital and
reserves. It will thus be seen that there is legislative hisiory behind ·
the use of the word 'computed' in relation to the 'capital employed
l
c
and It has.been legislatively recogojsed as involving, .as part of the
process of computation. both inclusion as well .as exclusion·<][ items
which may otherwise be regarded as forming part of the 'capital
eropl0yed'. It is in the context of this background and not by way ,
of a virgin attempt that the word 'computed' bas been used by the
D
Legislature in relation to the 'capital employed' in Section 801 sub· (I
section (I).

It-may be noted that even in the Income Tax Act, 1961 the
word 'computed' ha• been consistently used in relation to 'income'
in the sense of involving b'oth inclusion and excltrSian · of items of
income: Section 2 clause {46) defines 'total income' to ·mean the total-
amount of income referred to in Section 5 "computed·in the manner
laid down in 'this Act." Now, if we look at the provisions in the
Incl:line Tax Act, l 961, which lay down the manner of computation
of the total income, it would be cleanhat the prodess of computation·
of•tt>tal ineome involves bbth indusion and exclusion of varrous items F,
'
of'filcome-. Section·!O pr6vides that in computing the·tbtal illcon'le of
a pteviOus year of any person, any mcome falling within any of the
clauses of that sectiotr shill! not be included In the total income,
th6ugh ~tich income whi_ch in'equired to be excluded is undoubtedly G
income and therefore part of ibtal incollle according to the plain
natural connotation of that expression, ·But it is tequited t() be ,:
exciuded in lleteh'rli!ling the cbnrge of fax because·, 'tdtal income' is
defined as'total arlto\int df il\come, "computed in· the manner laid
down in the Act".

The same position obtains ·also in regard to Section l l and i_t
excludes. certain categories of income in computation. of the total
income:. then, we may refer to Section 29 which provides tha:t'the I('
: :~ ·- ';,

. SUPREM~ doURf REPoRTS [19ssj 2s.c.a.

income from profits· and gains of business and profession shall be
computed in accordance with the provisions contained in Sections 30
to 4-1A. These Seet1on provide for inclusion and exclusion of various
items in computing the total income. Sections 80A to 80VV also
provide for deductions to be made in computing the total income and
under sections such as 80HH, 80JJ and 80 0, even an item which
B
indisputably forms part of incomo of an assessee, is required to be
excluded in computing the total income chargeable to tax. No one
has ever argued and indeed it is impossible even to conceive of such
an argument, that when Section 2 clause (45) defines total income as •
the total !!mount.of income computed in accordance with the provi-
c sions of the Act, what is indubitably part of income cannot be
excluded in the computation. However, the argument of Mr. Palkhi-
\>ala was that in the case of definition of 'total income' the exclusion
of items of income in the process of computation is provided for by
the Legislature itself and is not purported to be done by any rule
making authority. The Legislature, stated Mr. Palkbivala, ca.n cut
D down· the width and amplitude of the expression "total amount of
income" by expressly providing that particular item or items shall be
excluded in the computing of the total amount of income, but the rule
making authority cannot do so, because by doing so, it would be
derogating from the provisions pf the statute. Now we have already
pointed out that since the expression 'capital employed' has a variable.
E
· meaning which in a- given case may or may not include borrowed
monies, the Central Board of Revenue, could, in exercise of its rule
making power, exclude borrowed monies in computation of the
'capital employed' and.in doing so it would not in any way be acting
contrary to the mandate of the statute. But the point which we wish
to emphasise here, while referring to the definition of 'total income'
in .Section 2 clause (45), is that the word 'computed' has been used
by the Legislature as comprehending with.in its scope not only
inclusion but also exclusion of certain items of income which are
admittedly and with.out doubt, part of the income of the assessee. We
find that even in some of the sub-sections of Section 80J the word
G 'computed' has been used in the same sense as involving bOth inclu-
sion. and exclusion: The second proviso to sub-section (4) of Section
80J. provides that where any building or part thereof previously
used for any purpose is transferred to the business of the industrial
undertaking, the value of the building or part so transferred shall
not be ·taken into account in computing the 'capital employed' in
the industrial undertaking. So also Explanation 2 to the same sub-
section enacts in so many terms that in a case falling within its scope ·
H
LOHIA MACHINES v. UNION (Bhagwati, J.)
A
and ambit, "the total valne of the machinery or plant or part so
transferred shall not be taken into account in computing the 'capital
employed in the. industrial undertaking." Then again, the Expla-
nation to sub-section (6) of Section 80J makes a similar provision
for exclusion of "total value of the building machinery or plant or B.
part so transferred" in computing the 'capital employed' in the case
of business of a hotel. It will thus be seen that; even according to
these provisions in Section 80J, the process of computation of .the
'capital employed' can legitimately exclude item or items which are
plainly and indubitably part of the 'capital employed'. Of course
the exclusion enacted by these provisions fa made by the Legislature c
and not by the rule making authority, but again, if we maiempba·
sise, the point is not whether an exclusion is made by the Legislature
or by the rule making authority but whether such exclusion is implicit
in the process of computation so as to be comprised in it. And on
this poiut not only the provisions of the Excess Profits Tax Act, 1940,
the Business Profits Tax Act, 1947 'the Super Profits Tax Act, 1963.
and the Companies (Profits) Sur Tax Act, 1964 but also the various
provisions of the Income Tax, Act, 1961 referred to by us, clearly
indicate that the word 'computed' bas been used by the Legfalature
in sub-section (I) Section iOJ as involving not only inclusion but
also exclusion of items which may otherwise be regarded as falling
E
within the expression 'capital employed'. It is left by the Legislature to
the Central Board of Revenue as rule making authority to prescribe
the manner in which the 'capital employed' shall be computed and
in so prescribing, the Central board of Revenue may include or
exclude items which may be regarded as forming part of the 'capital
employed', F

Mr. Palkhivala, however, contended, relying on the expression
"c~mputed in the perscribed manner", that what is left by the
Legislature to the Central Board of Revenue is merely to prescribe
the manner in which the 'capital employed' shall be computed and G
'manner' can only mean mode in which the computation has to be
made and under the guise of prescribing the mode of computation,
the Central Board of Revenue cannot, to use the words of Mr.
Palkhivala, "encroach upon the substance of the statutory subject
matter" or "remould the substance of the capital employed". Mr.
Palkhivala in support of this contention relied on the meaning of the
word 'manner' given in various dictionaries and also referred to
various decisions including the decision of the Privy Council.in Utqh H
796 ' Sttl'REMB COURT RllPOllTS [1985) 2 s.c.R.

Co11struq./ian v. Pataky{\),11niJ the detisio11.of this Court in S~les Tax \-
Qffic~r v., KL Abraham(~). Bnt we do not ti;\ink tl\ere is any substaµce
in this, cpntentipn of Mr. P'!lkbiva]l}. When the Central llollrd
ofRevonu<l prescribes by making rule or rules what items, sbi\ll
\'e inclu,ded and what. items e11cludei:I in computation of tl\e 'capital
employed', there. qan be n,o doubt thl!,t, ru;cc;mling to. the plain gram·
matical meaning oC the .wqrds used, what the Central 8Qard of
Re,venue daesjs ,to prescribe the manner oJ mode of comput11tion of
the 'capital employed' by I11yii;tg dowlJ.,M·to how the 'capital emptp·
yed',shall be comp!1ted anq _tl)a(Jvould. b~ cJearlY witllin th~ rule
ml\l>ing.authority conferred upon the Central Board of Revenue,
c '!:he; enti,re premise of t]je argun:iqnt Qf Mr ..P11lkqivala was t]jat by
CJ1cb1ding long term borro;v,ingsfrom t.be computation of the ',:apjtal
employed',, tlie Central. Bo11rd .of. Revenue woulg. be encroaclring
upon.or remoulding .the substa1we..of.tb.e '~apital employed' but; as
we have already pointed O!Jt, the expression '\)llpital employed' bas a
vaiiable.meaning which llll\Y or may not incluqe> Jong-tecni borrow•
ings1111d tl:lerefQre, if the Central j3oard of Revenue. lllllkes r11Je or.
rut~ providing.for exclusion 0 f )png-term borrowings in cpnipu.-
tatiop of tbe 'capital emplqyed', t])ere can, be no q\lcstion of encro.a·
ching upon or ren;ic;mlcling tbc sµb~tance of the '.capital employed!.
Ib~t.would be.clearly. wi.thin the authority ofthl' central Board pf
(
E ~evenue .to prescri!:>.e the manner or moqe of computation of the
'capital,emplo~ed'., The conclusiol) must therefore inevitably follow, •,
t])at even if long-term borrowil)gS . could be said to form part of
'capit11I employed'-and·indeed as pointed by us, they, can in a given
context-form part of the 'capital employed'-it ,was competent to the
Central Board of Revenue in exercise of its rule making power to
F' prescribe that, in computing the 'capital employed', borrowed monies
and debt& shall be excluded.

It may be pointed iont that.the Central Bliard of Revenue, iii
making~ub-rule{3)<>f Rule;l9Nhad earlier precedents fot it ·and
did-not write on a clean.slate .. Thtearliest precedent·was tht ·Bxcess·
Profits Tax Act 1940; where'as pointed out·above; an express enact'
ment was made in Second Schedule providing for exclusion ofborro.
wed monies and debts·in computing the average amount of 'capital
eiltployed' for the purpose of determining the standard profits.· The
, same scheme was replicated in the Business Ptofits . Tax Act 1947

(I) [1965] 3 All E.R.f 650.
'(i • (2)• [19&7)'3S.C.R. 518:
' LOIDA MACHINES i>. UNION (Blragwati, J.)

where again an express provision· was made in the Second Schedule to
., T that Act thaMhe oapital of the company shall consists of "its paid
up share capital of the company shall consist of "its paid up share
capital and its reserves", thus excluding borrowed monies and debts.
Similarly under the Super Profits Tax Act 1963 also a specific pr0>
vision was enacted in the Second.Schedule to that Act that the capita
oftbe company shall be computed on the basis of its paid up capital
plus reserves so that, in consequence, borrowed monies and debts
shall be excluded in computation of the capital of the company.
What the· Central Board of Revenue did in enacting sub-rule (3) of
Rule !9A was to follow the precedent set in these three statutes and
to make a similar provision excluding borrowed monies and debts in
computation of the 'capital employed'. The Central Board of Reve-
nue could not in the circumstances be said to have acted arbitraily
or whimsically or in an irrational or. unusual manner in enacting
sub-rule (3) of Rule !9A as alleged by Mr. Palkhivala.

It may be noted that under all the above three statutes namely
the Excess Profits Tax Act 1940, the Business Profits A.ct 1947 and
the Super Profits Act 1963, interest on borrowed monies and debts
was deductible in computing the profiits and gains of the business
and it appears that it•1ns in consequence of this provision for deduc-
tion of interest in computation of the profis and gains of the business
that borrowed monies and debts were excluded in computation of the
' 'capital employed' or the capital of the company, as the Cl\Se may be.
This becomes abundantly clear if we consider the provisions of ano-
ther statute enacted by the Legislature, namely, the Companies (Pro-
fits) Surtax Act 1964. This Act has undugone severaltamendments
F
from time to time and is still in force. It imposes a special tax on the
profits of certain companies and in Section 4 it provides that there
shall be charged on every company for every assessment year com-
mencing on and from !st April 1964 a tax called Surtax in· respect of
so much of its chargeable profits of the previons year as, exceed the
statutory deductioll' at the rate 'or rates specified in the Third Sche- G
dule. The ~xpression 'chargeable profits' is defined in sub·section (5)
of Section 2 to mean the total income of an assessee computed under
Income TaxAct 1961 for any previous year and adjusted in accor-
dance with the provisions of the First Schedule. The definition of
"statutory deduction" is to be found in sub-section (8) of SectiOn 2
where it is defined as "an amount equal to ten per cent of the capital
of.the company as computed in accordance with the provisions of the
Second Scbedule·or an [amount of two bun6red thousands rupees
H
738 SUPREME COURT REPORTS (1985) 2 S.C.R.

which ever is greater" .. The First Schedule lays down the rules for
computing the chargeable profits and prior to the amendment of the
Act by Finance Act 66 of 1976, Rule 3 of the First Schedule provi-
ded that the net amount of income calculated in accordance with
Rule 2 shall be increased intet a/ia by "the amount of any interest
B payable by the company in respect of debentures referred to in Clau-
se· (iv) or monies referred to in Clause (v) of Rule l of the Second
Schedule for the previous year relevant to the assessment year allowed
as a deduction in computing its total income". The Second Schedule
sets out the Rules for computing the capital of a company and Rule '4. -'
I as it stood prior to the amendment provided that the capital of a
c company shall be the aggregate of the amounts, as on the first day of .)'

the previous year relevant to the assessment year, of its paid up share
capital and reserves as set out in clauses (i} to (iii) and of : .

"(iv) the debentures, if any, issued by it to the public;
D Provided that according to the terms and conditions
of issue of such debentures, they are not redeemable before
the expiry of a period of seven years from the date of issue
thereof ; and

E (v) any moneys borowed by it from Government or the
Industrial Finance Corporation of India or the Indus-
trial Credit and Investment Corporation of India or any
other financial institution which the Central Govern- '
ment may notify in this behalf in the Official Gazette or
any banking institution (not being a financial institution
F notified as aforesaid) or any person in a country
ouside India :

Provided that such moneys are borrowed for the crea-
tion of a capital asset in India and the agreement under
which such mpneys are borrowed provides for the repay-
G ment thereof during a period of not less than seven years."

Thus it will be .seen that when the amounts of the debentures
and long term borrowings from approved sources were included in
..
computation of the capital of a company, the amount of interest
payable by the company in respect of such debentures and long term
borrowings was required to be added back to the total income for the
purpase of arriving at the chargea~le profits liable to sur-tax. But by
Secti~n 29 of Finance Act 66 of 1976 Cla11ses (iv) and (v) of Rule l
"

LOHIA MACHINES v. UNION )Bhagwati, J.) 739
A
of the Second Schedule were deleted with the result that the endeb-
• J tures, if any, issued by a company as also long term borrowings
from a proved sources were no longer includible and were consequen-
tly excluded in computing the capital of the company. It is significant
to note that when this exclusion of debentures and long term borro·
wings from approved sources was made, Rule 3 of the First Schedule B
was also simultaneously :<mended by Section 29 of Finance Act 66 of
1976 and the provision for adding back the amount of interest pay •
• able by the company in respect of debentures and long term borrow-
ings from approved sources was deleted It is obvious from this
amendment of the Companies (Profits) Surtax Act 1964 as also from
the provisions in the earlier three statutes that the consistent practice c
adopted by the Legislature over the years has been-and this practice
reflects the legislative intent and will that whenever interest payable
on borrowed monies is either not deducted or if deducted is added

. >
back in computing the total income. such borrowed monies are inclu-
ded in computation of the 'capital employed' or capital of the
D
company and similarly when interest payable Qil borrowed monies is
deducted in computing the total income is not added back, such
borrowed monies are excluded in computation of the 'capital emplo·
yed' or capital of the company. Here in the present case, so far as
sub-section (I) of Section 80 J is concerned, interest payable on
borrowed monies is deductible in computing the total income of the E
assessee and is not required to be added back and hence it is quite
consistent with the practice adopted and recognised by the Legislature
in these various statutes, to exclude long term borrowings in compu-
tation of the 'capital employed', for the purpose of allowing relief
under sub-section (l) of Section 80J.
F

Mr. Palkhivala, however, contended that there was a vital
distinction between the Excess ·Profits Tax Act 1940, Business Profits
Tax Act 1947, Super Profits Tax Act 1963 and Companies (Profits)
Surtax Act 1964 on the one hand and sub-section (l) of Section 80J G
on the other, in that the object of each of the four statutes above
referred to was the exact opposite of that of sub-section (I) of
Section 80 J. These four statutes, urged Mr. Palkhivala, aimed at
levying additional tax over and above income tax in respect of excess
profits or supper profits made by a company and since super profits
or excess profits are profits in excess of a fair return on the owner's
capital staked in the business, each of the four statutes, for determing
the excess profits or[super profits, provided specificall~ that, the tt
'

740 SUPRE)l!E COTRT REPORTS (1985] 2 S.C.R.
A
abatement from the profits shall be calculated by reference only to
the assessees own capital without taking into account any borrowed
monies and debts Mr. Palkhiva!a contended that since the legislative
•
intent was to give ahatement from the profits only by reference to the
assessees own capital the abatement was rightly calculated by refe-
B rence only to the paid up capital and reserves, though in the case of
the Companies (Profits) Surtax Act 1964 as it stood prior to its
amendment by Finan~e Act 66 of 1976, the Legislature chose to be
more liberal and allowed even debentures and long term borrowings
•
from certain approved sources to be taken into account in computing
the capital of the company, But, said Mr. Palkhivala, the position
c is entirely different under sub-section (1) of Section 80J because the
principal object of this statutory provision is to offer tax incentive
and it could not have been intended by the Legislature that the tax
incentive should be limited only to statutory percentage of the asses-
see's own capital and not take into account 'borrowed capital'. This
..
,, contention of Mr. Palkhivala, plausible though it may seem, is totally
unfounded Mr. Palkhi¥f1la, in our opinion, is trying to make a
distinction which does not exist, and we must reject his contention
based on such supposed distinction.

E It is no doubt true that the object of the Excess Profits Tax Act
1940, Business Profits Act 1947, Super Profits Tax Act 1963 and the
Companies (Profits) Sur Tax Act 1964 is different from that of sub-
section (I) of Section 801 in that the· four statutes belonging to the
former group seek to tax excesss profits or super profits while the
statutory provision in the latter group seeks to offer tax incentive by
F exempting a certain portion of the profits. But so far as the question
of computation of the 'capital employed' is concerned, we are unable
to see any distinction between the above-mentioned four statutes on
the one hand and sub-section (I) of Section 80J on the other. In the
case of the former what are sougnt to be taxed are the excess profits
over what may be regarded as fair return on 'capital employed' and
G in the case of the latter also, it is the fair return on 'capital employed'
that is sought to be exempted from tax. Though the object of the
two sets of provisions is different, the concept of fair return on 'capi-
ta! employed' lies at the base of both sets of provisions. If for the
purpose of determining the excess profits liable to the charge of addi-
tional tax under any of the afore-mentioned four statutes, fair return
is calculated on the owner's capital employed in the undertaking
excluding the borrowed monies, there is nothing irrational or unusual
H in the Central Board of Revenue providing that for computing the
LOH!A MACHINES v. UNION (Bhagwati, J.) 741

fair return on the 'capital employed' which is to be exempted from A
._ ~ tax under sub-section ( i) of Section 801, the ownter's capital alone
should be taken into account and borrowed monies should be
excluded. Even in regard to the provisions of the abovementioned
four sta\utes, an argument could well be advanced that borrowed
monies are as much part of capital employed in the undertaking as
ll
the owner's capital and when monies are borrowed on payment of
interest by way of hire charges, they become part of the owner's
• capital originally brought in by the owner and there is no reason
why capital partaking of the samd characteristics as the fair
return should nat he allowed on it. This has precisely been the
argument advanced on behalf of the assessees in support of their c
contention that 'capital employed' must include borrowed monies in
sub-section (I) of Section 801 But this argument has not prevailed
with the Legislature in the enactment of any of the above-mentioned
four statutes and despite this argument the Legislature has chosen to
exclude borrowed monies in computing the 'capital employed' or the
capital of the company for determining what should be regarded as D
fair return, so that profits in excess of such fair return may be subjec-
ted to additional tax. The Central Board of Revenue cannot therefore
be accused of any irrationality or whimsicality in providing that fair
return on the 'capital employed' eligible for exemption under sub-
section I) of Section 801 should be calculated by applying the statu-
tory percentage to the owner's capital, that is, the paid up share capi- E
tal and reserves without taking into account long term borrowings or
• for the matter of that, any borrowed monies and debts. We cannot
appreciate the contention of Mr. Palkhivala that when the Legislature
was offering a tax incentive it could not have intended that the tax incen-
tive should bemeasureable by reference only to the owner's capital and F
that borrowed capital should be left out of account, because that would,
in the submission of Mr. Palkhivala, result in favouring the aflluent
assessees who are able to employ their own capital and discriminate
against the indigent who have to borrow funds to finance their under-
takings. Having regard to the legislative parctice and usage referred
to by us, it is obvious that if the Legislature intended that the capital G
employed' must include long term borrowings, the Legislature would
not have used the flexible expression 'capital employed' but would
have expressed itself unambiguously by providing that the 'capital
employed' shall include long term borr,1wings. It is clear from the
language used by the section that the Legislature proceeded on the
' -1' basis that the expression 'capital employed' has no fixed definite
\
meaning including or excluding long term borrowings and delibera-
tely chose to leave it to the Central Board of Revenue to prescribe H
742 SUPREME COURT REPORTS [ 1985] 2 s.c.R.

A how the 'capital employed' shall be computed or in other words,
what items shall be included and what items excluded
in computing the 'capital employed' and by incorporating
\ .
Rule l 9A with retrospective effect in Section 80J by the
Finance (No. 2) Act 1980, the Legislature clearly expmsed its ap-
roval of the manner of computation of the 'capital employed' pres-
B
cribed by the Central Board of Revenue by making sub-rule (3) of
Rule J9A. The consequence of this interpretation would undoubtedly
~
be that the assessees would get relief only with reference to their own •
I
capital and not with reference to any monies which might have been
borrowed by them for employment in the undertaking but that is a
c matter of policy which clearly falls within the province of the Execu-
tive and the Courts are not concerned with it. It is obvious that the
Central Board of Revenue intended-and having regard to the retros-
pective amendment of Section 80J by Finance Act (No. 2) of 1980
that must also be taken to be the intention of the legislature-that
the assessees should be given relief only with reference to their
D own capital and not with reference to any borrowed monies, presum-
ably because the object of giving relief was to encourage assessees to
bring out their own monies for starting new industrial undertakings
and the intention was not that the assessees should be given relief
with reference to monies which did not belong to them but which
were borrowed from financial institutions and other parties and which
E
would have to be repaid.

Mr. Palkhivala then contended that if sub-section (I) of Section
80J were construed as leaving it to the Central Board of Revenue to
prescribe what items shall be included and what items excluded in
F
computation of the 'capital employed' it would be vulnerable to
attack on the ground of excessive delegation of legislative power and
would consequently be void. We do not think there is any substance
in this contention, for there is in the present case no question of
excessive delegation of legislative power. The essential legislative
G policy of allowing relief to an assessee who starts a new industrial
undertaking or business of a hotel and declaring the period for which
such relief shall be granted, is laid down by the Legislature itself in the
various sub-sections of Section SOJ and all that is left to the Central
Board of Revenue to prescribe is the manner of computation of the
'capital employed' with reference to which the quantum of the relief
is to be calculated. It is only the details relating to the working of the
exempting provision contained in Section 801 which are left by the
H Legislature to be determined by the Central Board of Revenue. This
LOHIA MACHINES I'. UNION ( Biiagwati, f) 743
is clearly permissible without offending the inhibition against exces- A
sive delegation of legislative power. It must be remembered that
Section 80J enacts an exemption in a taxing statute and a certain
margin of latitude is always allowed to he Executive in working out
the details of exemption in a such taxing statute. It was laid down by
this Court as far as back as 1959 in Pt Banaarsi Dass Bhanot v. State B
of Madhya Pradesh(1) .

• "Now, the authorities are clear that it is not unconsti-
tutional for the legislature to leave it to the executive to
determine details relating to the working of taxation laws,
such as the selection of persons on whom the tax is to be .. c
laid, the rates at which it is to be charged in respect of
different classes of goods, and the like."

So also in Sitaram Bishambardas and Ors. v. State of U.P. and
> Ors.(2) this Court upheld the validity of Section 30 (I) of the U.P.
D
Sales Tax Act 1948 which authorised the levy of a tax on the turn-
over of first purchases made by dealer or through a deaLr acting as
a purchasing agent, in respect of such goods or class of goods and at
such rates, subject to a maximum, as may from time to time be noti-
fied by the State Government and Hegde, J. speaking on behalf of
the Court observed : E

• "It is true that the power to fix the rate of a tax is a
legislative power but if the legislature lays down the legisla-
tive policy and provides the necessary guidelines, that power
can be delegated to the executive. Though a tax is levied
primarily for the purpose of gathering revenue, in selecting F
the objects to be taxed and in determining the rate of tax,
various economic and social aspects, such as the availability
of the goods, administrative convenience, the extent of eva-
sion, the impact of tax levied on the various sections of the
society etc. have to be considered. In a modern society G
taxation is an instrument of planning. It can be used to
achieve the economic and social goals of the State For that
reason the power to tax must be a flexible power. It must
he capable of being modulated to meet the exigencies of the
situation. In a Cabinet form of Government, the executive

(I) (1959] S.C.R. 427.
(2) [1972] 2 S.C.R. 141. H
744 SUPREME COURT REPORTS [19851 2 s.c.R.
A
is expected to reflect the views of the legislatures. In fact in
most mattters it gives the lead to the lcgisatlure. However,
much one might deplore the "New Depotism" of the exe-
cutive, the very complexity of the modern society and the
demand it makes 0n its Government have set in motion
B forces which ha e made it absolutely necessary for the legis-
latures to entrust more and more powers to the Executive.
Text book doctrines evolved in the I 9th century have become
out of date. Present position as regards delegation of legis- •
lative power may not be ideal, but in the absence of any
better alternative, there is no escape from it. The legisla-
c tures have neither the time, nor the required detailed infor-
mation nor even the mobility to deal in detail with the
innumerable problems arising time and again. In certain
matters they can only lay down the policy and guidelines in
as clear a manner as possible."

D
The validity of Section 3D of the U.P. Sales Tax Act 19<8
was again challenged beforo this Court in Hirata/ Ratan Lal v. State
of U.P. and Anr (') the same ground that it suffered from the vice of
legislative power and again, the challenge was negatived by this Court
with the following observations :
.E
"The only remaining contention is that the delegation
ma4e to the executive under s. 30 is an excessive delega- •
tion. It is true that the legislature cannot delegate its
legislative function, to any other body. But subject to that
qualification, it is permissible for the legislature to delegate
F
the power to select the persons on. whom the tax is to be
levied or the goods or the transactions on which the tax is
to be levied. In the Act, under s. 3 the legislature has
sought to impose multi-point tax on all sales and purchases.
After having done that it has given power to the executive,
G a high authority and which is presumed to command the
majority support in the legislature; to select for special
treatment dealings in certain class of goods. In the very
nature of things, it is impossible for the legislature to
ennumerate goods, dealings in which Sales. Tax or Purchase
tox should be imposed. It is also impossible for the
legislature to select the goods which ohould be subjected to

H (IJ [1973) 2 S.C.R. 502.
LOHIA MACHINES V, UNl'JN (Bhagwati, J,) 745
A
a single point sales or purchase tax. Before making such
selections several aspects such as the impact of the levy on
the society, economic consequences and the administrative
convenience will have to be considered. These factors may
change from time to time, Hence in the very nature of
things, these details have got to be left to the executive," B

The principles laid down in these observations from the decided
• cases clearly govern the present case and conclusively repel the conten-
tion or Mr. Palkhivala that if sub-section ( l) of Section 80J were
construed in the manner suggested by the learned Attorney General
on behalf of the Revenue, it would be rendered void on the ground c
of excessive delegation of legislative power, The Legislature having
laid down the legislative policy of giving relief to an assessee who is
starting a new industrial unpertaking or the business of a hotel, had
necessarily to leave it to the Central Board of Revenue to determine
what should be the amount of capital employed that should be
required to be taken into that account for the purpose of determining D
the quantum of the relief allowable under the Section. What should
be the quantum of the relief allowable to the assessee would necessa-
rily depend upon diverse factors such as the impact of relief on the
industry as a whole, the response of the industry to the grant of the
relief, the adequacy or inadequacy of the relief granted in promoting
E
•
-· the growth of new industrial undertakings, the state of the economy
prevailing at the time, whether it is buoy"'t or depressed and
administrative convenience. These are factors which may change from
time to time and henoe in the very nature of thin~s, the working out
of the mode of computation of the 'capital employed' for the purpose
of determining the quantum of the relief must necessarily be left to
the Central Board of Revenue which would be best in a position to
consider what should be the quantum of the relief necessary t<> be given
by way of tax incentive in order to promote setting up of new indus-
trial undertakings and hotels and for that purpose, what amount of
the 'capital employed' should form the basis for computation of such
relief. G

Moreover, it may be noticed that under Section 296 of the
Income Tax 1961 every Rule made under the Act is required to be
laid before each House of Parlia.nent so that both Houses of Parlia-
ment have an opportunity of knowing what the rule is and conside-
ring whether any modification should be made in the rule or the
rule should not be made or issued and if both Houses agree in
making any modification in the rule or both Houses agree that the H
146 SUPREME COURT REPOi!.TS (1985) 2 S.C.R.
A Rule should not be made or issued, then the Rule would thereafter
have effect only in such modified form or have no effect at
all. as the case may be. Parliament has thus not parted with its
control over the rule making authority and it exercises strict vigilance
and control over the rule making power exercised by the Central
Board of Revenue. This is a strong circumstance which militates
B
against the argument based on excessive delegation of legislative
power. This view receives considerable support from the decision of
the Privy Council in Powell v. Appo//o Candle Company Limited(') > '
. where the Judicial Committee, while negativing the challenge to the I
constitutionality of Section 133 of the Customs Regulation Act of
1879 which conferred power on the Governor to impose tax on
c certain articles of import, observed as follows:

"It is argued that the tax in question has been imposed
by the Governor and not by the Legislature who alone had
power to impose it. But the duties levied under the Order-in
D Council are really levied by the authority of the Act nnder
which the Order is issued. The Legislature has not parted
with its perfect control over the Governor, and has the
power, of course, at any moment, of withdrawing or altering
the power which they have entrusted to him. In these cir-
cumstances, their Lordships are of opinion that the judgment
E of the Supreme Court was wrong in declaring Section 133
of the Customs Regulation Act of 1879 to be beyond the
pow.er of the Legislature. •

The same approach was adopted by this Court in D. S. Grewal
F v. State of Punjab( 2) where upholding the validity of Section 3 of the
All India Services Act 1951 which was challenged on the ground of
excessive delegation of legislative power, Wanchoo, J. speaking on
behalf of the Court said:

"Further, bys. 3 the Central Government was given
G the power to frame rules in future which may have the effect
of adding to, altering, varying or amending the rules accep-
ted under s.4 as binding. Seaing that the rules would govern
the all-India services common to the Central Go{ernment
and the State Government provision was made by s.3 that
rules should be framed only after consulting the State

(!) [1885) 10 A.C. 282.
H (2) (19,9] Supp. I S.C.R. 792.
Loli1A MACHINES v. UNION (BhagMati, i) 141

Governments. At the same time Parliament took care to A
see that these rules were laid on the table of Parliament for
fourteen days before they were to come into force and they
were subject to modification, whether by way of repeal or
amendment on a motion made by Parliament during the
session in which they are so laid. This makes it perfectly
B
clear that Parliament has in no way abdicated its authority,
but is keeping strict vigilance and control over its delegate.

It will thus be seen that there is no question of excessive
delegation of legislative power in the present case and, even on the
view as to interpretation taken by us, sub-section (I) of Section 80J c
cannot be assailed as unconstitutional on the ground of excessive
delegation of legislative power. We must therefore hold that sub-
rule (3) of Rule I 9A in so far as it provided for exclusion of
borrowed monies and debts and particularly long-term borrowings
in computation of the 'capital employed' could not be said to be
' outside the rule making authority conferred on the Central Board of D
Revenue under sub-section (I I of Section 80J and was a perfectly
valid piece of subordinate legislation.

That takes us to the second point urged by Mr. Palkhivala
relating to the dimension of time in regard to the expression 'capital E

.. employed'. The argument of Mr. Palkhivala was that the concept of
'capital employed' in respect of the previous year is a concept which
compels attention to the reality of the capital used during the whole
year and not merely on the first day of the computation period and
therefore Rule 19A in so far as it provided for computation of the
F
'capital employed' as on the first day of the computation period
was ultra vires the rule making authority of the Central Board of
Revenue under sub-section (I) of Section. 80J This argument of Mr.
Palkhivala is also unsustainable and must be rejected. It may be
noted that when sub-section (I) of Section 80J speaks of 'capital
employed' in an industrial undertaking or business of a hotel, it does G
not refer to 'capital employed' during the previous year but it uses
the expression 'capital employed' in respect of the previous year,
There is a vital difference between the expression "during the previous
year" and the expression "m connection with the previous year".
The argument of Mr. Palkhivala would have had great force if the
reference in sub-section (I) of Section 80J would have been to 'capital
employed' during the previous year. Then it could have been con-
tended with considerable plausibility that the 'capital employed' H
748 SUPREME COURT REPORTS [19851 2 s.c.R.
A cannot be computed as on the first day of the preivous year, but it
should be taken to be the average amount of 'capital employed'
during the previous year. But the expression used by the Legislature
)n sub-section (I) of Section SOJ being "capital employed ..... com-
puted in the prescribed manner in respect of the previous year", the
B computation has to be in respect of the previous year and it need not
take into account the average amount of 'capital employed' during
the previous year but it can legitimately take the first day of the
previous year as the point of time at which the 'capital employed'
must be computed. The 'capital employed' so computed would
clearly fall within the expression "capital employed ......... computed
c in the prescribed manner in respect of the previous year". Mr.
Palkhivala relied on the description given in the parenthetical portion
at the end of sub-section (I) of Section 80J which describes the
amount calculated by applying the statutory rate of six per cent to
the 'capital employed' computed in the prescribed manner in respect
of the previous year as "the relevant amount of capital employed
D during the previous year", but that is merely a description given to
the amount calculated as provided in the main part of sub-section
(I) of Section 80J and in the main part, we find the words "in respect
of the previous year" and not "during the previous year". It may be
pointed out that the words "in respect of the previous year" were
introduced for the first time when Section 80J came to be enacted
E
as a result of the Report of Shri S. Boothalingam, where he recom-
mended that the prevailing "base for the calculation of profits.
nemely, average 'capital employed' in the business during each year"
was complicated and difficult to establish and it was therefore
desirable to adopt the basis of computation of the 'capital employed'
F as "at the beginning of the year but ignoring the fresh introduction
of capital in the course of the year". It was following upon the
introduction of the words "'in respect of the previous year" in sub-
section (I) of Section 80J that Rule 19A was made providing for
computation of the 'capital employed' as on the first day of the
computation period. Moreover, if we refer to the definition of
G 'statutory deduction' in sub-section (8) of Section 2 and Rule I of
the Second Schedule of the Companies (profits) Surtax Act 1964, it
would be apparent that, according to the Legislature, the process
of computation of the capital of the company includes also the
specification of the point of time as on which the capital of the
company shall be computed. Therefor<, even if the words "in respect
of the previous year" were absent, it would have been competent
to the Central Hoard of Revenue as the rule making authority to
H provide for the computation of the 'capital employed as on the
LOli!A MACHINES v. UNION (A.N. Sen, J.) 749
A
first day of the computation period, as was done by the Legislature
in the case of the Companies (Profits) Surtax Act 1964. The words
"in respect of the previous year" are facilitative of the computation
of the 'capital employed' being prescribed as on the first day of the
computation period. We cannot therefore accept the contention of
Mr. Palkhivala that Rule 19A in so far as it provided for com- B
putation of the 'capital employed' as on the first day of the computa-
tion period was outside the rule making authority of the Central
Board of Revenue under sub-section (I) of Section 80J.

We are therefore of the view that Rule I9A in so far as it
excluded borrowed monies and dabts in computatipn of the 'capital c
employed' and provided for computation of the 'capital employed'
as on the first day of the computation period was not ultra vires
Section 80J and was a perfectly valid rule within the rule making
authority conferred upon the Central Board of Revenue. So also, for
the same reasons, Rule 9A in so far as it provided that the 'capital D
j
employed' in a ship shall be taken to be the written down value of
the ship as reduced by the aggregate of the amounts owed by the
assessee as on the computation date on account of monies borrowed
or dabts incurred in acquiring that ship must be held to be valid as
being within the rule making authority of the Central Board of
Revenue. Since, on the view taken by us, Rule I 9A did not suffer E
from any infirmity and was valid in its entirity, Finance Act (No.2)
of 1980 in so far as it amended Section 80J by incorporating Rule
19A in the Section with retrospective effect from lst April 1972,
was merely clarificatory in nature and must accordingly be held to be
valid.
F
The writ petitions will therefore stand dismissed but having
rogard to the importance of the questions involved in the writ
petitions, we think it would be fair and just to direct each party to
bear its own costs of the writ petitions.
G
A.N. SEN, J. I have had the benefit of reading the judgment
prepared by my learned brother Bhagwati, J. I regret I cannot
pursua<le myself to agree.

The material facts have been fully stated in the judgment of
my learned brother. My learned brother in his judgment has set
out all the relevant provisions of the Income Tax Act and the Income
Tax Rules. He has also traced the legislative history of S.80J of the Ii
?so SUPREME COURT REORTS [1985] 2 s.c.fl.
A
Jncome Tax Act, 1961 and has noted the various amendments effec-
ted to that section from time to time. It does not, therefore, become
necessary to reproduce the same at any length in my judgment.
The two questions which fall for determination are:-

(1) Whether rule 19A of the Income-Tax Act Rules inso-
B
far as the said rule excludes borrowed capital and fixes
the first day of the year in the matter of computation
of capital employed for the purpose of reltef under
section 80J is valid.

(2) Whether the amendment introduced in S. 80J by the
c Finance (No.2J Act of 1980 incorporating in the section
the provisions of the rule in relation to the exclusion
of borrowed capital and the fixing of the first day of
the year for the purpose of computation of the capital
employed for granting relief under S. 80J with retros-
a pective affect from I st April, 1972 is valid ?

The material provisions of Rule l9A read as follows:-

(!) For the purposes of S. 80J, the capital employed in an
industrial undertaking or the business of a hotel shall
E be computed in accordance with sub-rules (2) to (4),
and the capital employed in a ship shall be computed
in accordance with sub-rule 5).
...
( 2) The aggregate of the amounts representing the values
of the assets as on the first day of the computation
F period, of the undertaking or of the business of the
hotel to which the said section 80J applies shall first be
ascertained in the following manner :

(i) in tbe case of assets entitled to depreciation, their
written down value;
G
(ii) in the case of assets acquired by purchase and not
entitled to depreciation, their actual cost to the
assessee;

(iii) in the case of assets acquired other-wise then by
purchase and not entitled to depreciation, the value
of the assets when they became assets of the
11 business;
WHIA MACHINF.S V. UNION (A..N. Stn, J.) 751
A
. ...,
.
)
(iv) in the case of assets being debts due to the person
carrying on the business the nominal amount of those
debts;

(v) in the case of assets being cash in hand or bank, the
amount thereof. B

Explanation 1: In this rule, ''Computation period" means the
period for which profits and gains of the indus-
trial undertaking or business of the hotel arc com-
puted under sections 28 to 43A. c

Explanation 2: The value of any building, machinery or plant or
any part there of as is referred to in cl. (a) or
clause (bl of the explanation at the end of sub-
section (6) of section 80J shall not be taken into
account in computing the capital employed in
n
the industrial undertaking or, as the case may be,
the business of the hotel.

Explanation 3: Where the cost of asset has been satisfied other-
wise than in cash, the then value of the consi- E
deration actually given for the asset shall be
treated as the actual cost of the asset.

(3) From the aggregate of the amount as ascertained under
sub-rule (2) shall be deducted the aggregate of the F
amounts, as on the first day . of the computation
period, of borrowed moneys and debts due by the
assessee (including amount due towards any liability in
respect of tax )

G
Rule 19A forms a part of the Income-Tax Rules 1962 which
have been framed by virtue of the authority conferred under section
'.<95 of the Income-tax Act 1961. Section 295 lays down :

"(I) The Board may subject to the control of the
Central Government, by notification in the Gazette of India,
make rules for the whole or any part of India for carrying
out the purposes of this Act;
752 SUPREME COURT REORTS [1985] 2 s.c.R.
A ( 2) In particular, and without prejudice to the gene-
rality or the foregoing power, such rules may provide for
all or any of the following matters:-
X X X
It may be noted that the matters mentioned in sub-section (2)
B do not refer to section 80J of the Act

The relevant provisions or S. 80J as it stood prior to the ). •
impugned amendment by the Finance Act 2 of 1980 material for the 1
purpose of the present proceedings may be set out :
c "( l). Where the gross total income of an assessee
includes any profits and gains derived from an industrial
undertaking or a ship or the business of a hotel, to which
this section applies, there shall, in accordance with and
subject to the provisions of this section, be allowed, in com-
D puting the total income of the assessee, a deduction from
such profits and gains (reduced by the aggregate of the
deducthns, if any. admissible to the assessee under section
80H and section 80HH) of so much of the amount thereof
as does not exceed the amount calculated at the rate of six
per cent per annum on the capital employed in the indus-
E trial undertaking or ship or business of the hotel as the case
may be, computed in the prescribed manner in respect of
the previous year relevant to the assessment year (the
amount calculated as aforesaid being hereafter, in this
section, referred to as the relevant amount of capital em-
ployed during the previous year) ...
F
(2) The deduction specified in sub-section (l) shall be
allowed in computing the total income in respect of the
assessment year relevant to the previous year in which the
industrial undertaking begins to manufacture or produce
articles or to operate its cold storage plant or plants or the
G ship is first brought into use or the business of the hotel
starts functioning (such assessment year being hereafter, in
this section, referred to as the initial assessment year) and
each of the four assessn'ent years immediately succeeding
the initial assessment year.
x x x
(4) This section applies to any industrial undertaking
which ft1lfills all the following .conditions, namely:-
LOHIA MACHNES v. UNION (A.N. Sen, J.) 753
A
(i) it is not formed by the splitting up, or the recons-
truction, of a business already in existence;

(ii) it is not formed by the transfer to a new business
of machinery or plant previously used for any

., purpose;

(iii) it manufactures or produced articles, or operates
B

·" one or more cold storage plant or plants. in any
part of India, and has begun or begins to manu-
facture or produce articles or to operate such plant
or plants, at any time within the period of (thirty- c
three yearsJ next following the fst day of April,
1948, or such further period as the Central Govern·
ment may, by notification in the official Gazette,
specify with reference to any particular industrial
undertaking;
D
(iv) in a case where the industrial undertaking manu·
factures or produces articles, the undertaking
employs ten or more workers in a manufacturing
process carried on with the aid of power, or employs
twenty or more workers in a manufacturing process
carried on without the aid of power : E

Provided that the condition in clause (i) shall not apply
in respect of any industrial undertaking which is formed as
a result of the re-establishment, reconstruction or revival by
the assessee of the business of any such industrial under-
taking as is referred to in S. 33B, in the circumstances and F
within the period specified in that section;

Provided further that, where any building or .any part
thereof previously used for any purpose is transferred to
the business of the industrial undertaking, the value of the
building or part so transferred shall not be taken into .G
account in computing the capital employed in the indus-
trial undertaking:

Provided also that in the case of an industrial under·
taking which manufactures or produces any articles spacified
in the list in the Eleventh Schedule, the provisions of clause
(iii) shall have effect. as if for the words 'thirty-three years',
the word 'thirty-one years' had been substituted." I!
754 SUPR3ME COURT REPORTS [1985) 2 S.C R.
A
I propose to take up first the question of. the validity of the
Rule. I consider this will be the proper course to adopt If the Rule
is held to be valid, the question of the amendment with retrospec-
tive effect may not require any consideration at all. If, on the other
hand, the Rule is held to be invalid, the question of the validity of
B the amendment assumes vital importance. The invalidity of the Rule,
on the basis of the arguments advanced, may also have a bearing in
deciding the validity or otherwise of the amendment.

The rule must be held to be valid, if the rule is found to be in
•.
"
conformity with and consistent with the section. If, however, the •
c rule is found to be inconsistent with and contrary to the provisions
of the section, the rule has to be pronounced invalid.

Whether the rule is in conformity with and is consistent with
the section or whether the rule is inconsistent with and contrary to
the provisions of the section, must necessarily be determined on
D a proper interpretation of the section.

Principles of construction of any statute or any statutory
provision are well-settled. The purpose of ir;terpretation of any
statute is to gather the true intention of the Legislature. It is well-
settled that "if the words of a statue are clear and unambiguous,
E
they themselves indicate what must be taken to have been the
intention of Parliament and there is no need to look elsewhere to
discover their intention or their meaning". (See Halsbury's Laws of
England, 4th Edn. Vol. 44 at P. 522). When the words of a statue
are clear, plain or unambiguous, it becomes the duty of the Court
F to expound those words in their natural and ordinary sense, as the
words used themselves best declare the intent of the Legislature.
If on a fair reading of a section, the words used appear to be plain
and unambiguous and are reasonably susceptible to one meaning
only, Courts must give effect to that meaning, unless such a meaning
makes a non-sense of the section or leads to absurdity. The Court is
G not concerned with the policy involved or with the results, injurious
or otherwise, which may follow from giving effect to the language
used. Jn Emperor v. Banoari Lal Sarma,(l) Viscount Simon, L.C.
observed at P.55:-

"Again and again, this Board has insisted that in
enacted words we are not concerned with the policy involved

(!) A.I.R. 19451P.C.J48.
LOHIA MHOHINES v. UNION (A.N. Sen' J,) 755

construing or with the results, injurious or otherwise, which
may follow from giving effect to the language used".

In Kanti Lal Sur v. Paramnidhi Sadhukhan,(I) this Court at P.
910 held:-

"If the words used are capable of one construction
only, then it would not be open to the Comts to adopt any
other hypothetical construction on the ground that such
hypothetical construction is more consistent with the alleged
object and policy of the Act".

If, however, the words of a statute are not clear and are c
ambiguous; different considerations may apply in interpreting the
provisions for gathering the true intention of the law-giver. It is
stated in Halsbury's Laws of England, 4th Edn. Vol. 44, in para
858 at P. 523, as follows:

"If the words of a statute are ambiguous, the inten- D
tion of Parliament must be sougth first in the statute itself,
then in other legislation and contemperaneous circumstances
and finally in the general rules laid down long ago, and
often approved namely, by ascertaining (I) what was the
common law before the making of the Act; (2) what was

- the mischief and defect for which the common law did not
provide; (3) what remedy Parliament resolved and appointed
to cure the disease of the commonwealth, and (4) the true ·
• reason of the remedy" •

As on a fair reading of S. 80J, I am satisfied that the section F
is sufficiently clear and the language used therein suffers from no
ambiguity, it does not become necessary for me in the instant case
to consider at length the principles of interpretation which are
requ· red to be observed in construing an ambiguous statute.

The material provisions of S. SOJ of the Income-tax Act, prior G
to the impugned amendment by the Finance Act, 1980, have been
earlier set out. The relevant provisions of the said section provide
that where the gross total income of an assessee includes profits and
gains derived from an industrial undertaking or ship or the business
~ of a hotel to which the section applies, there shall, in accordance
-1._ with and subject to the provisions of the section, be allowed in

(I) A.LR. 1957 S.C. 907. H
756 SUPREME COURT REPORTS [1985] 2 S.C.R.
A
computing total income of the assessee, a deduction from such
profits-and gains (reduced by the deduction, if any, admissible to I
y-
the assessee under S. 80HH or S. 80HHA) of so much of the amount
thereof as does not exceed an amount calculated @ 6 % per annum
on the capital employed in the industrial undertaking or ship or
business of tbe hotel as the case may be, computed in the manner
prescribed in respect of the previous year relevant to the assessment
year (the amount calculated aforesaid being hereinafter, in thi
connection referred to as the relevant amount of capital employed \
'-
•
during the previous year).

c For qualifying for relief under this section, an assessee must
derive profits and gains from an industrial undertaking or ship or
the business of a hotel to which the section must be applicable.
It is not in dispute that the assessees who have approached the Court
have derived profits and gains from industrial undertaking set up by
them and they qualify for relief under this section.
D
A plain reading of the section with reference to the language
used therein clearly postulates that relief as contemplated in the
section is to be allowed on the capital employed in the undertaking
in the previous year, producing the profits and gains of the under-
taking in the previous year. An undertaking might have had capital

-
which might not have been employed in the undertaking in previous
year for earning profits and gains which were earned in the previous
year. Such capital, though forming part of the capital of the under-
taking, will not be entitled to the benefit of the relief under this
section. Relief is contemplated only on the capital which was emp-
loyed in the undertaking in the previous year and which produced
in the previous year the profits and gains of the undertaking which
were included in the total income of the assessee in the previous
year. Relief under this section for the undertaking is clearly intended
on the capital employed in the undertaking which produced the
profits and gains of the undertaking in the previous year. This
intention is made manifestly clear, as relief has to be granted on the
basis of the profits and gains earned by the undertaking in the previous
year by virtue of employment of capital in the undertaking in the
previous year. The. capital empl?yed in the undertaking which
qualifies for relief under this Section clearly refers to and must
necessarily be the capital employed in the undertaking in the previous 1'
year for the purpose of earning the profits. If the capital employed ,r
in the undertaking is own capital, such capital qualifies for relief. If
capital employed is borrowed capital, sue\! capital will equally
LOHIA MACHINES v. UNION (A.N. Sen, J,) 757
A
•• 1 qualify for relief. If capital employed consists of assessee's own
_, capital and also his borrowed capital, the capital so employed,
assessee's own and borrowed, will both qualify for the relief. The
capital employed in the undertaking in the previous year which
qualifies for relief under this section has to be computed in the 8
manner prescribed. There is nothing in the section to suggest or
.:-~
indicate that in prescribing the manner of computation of the capital
• ,employed in the undertaking for the purpose of relief, any part of
the capital which was employed in the undertaking for producing the
profits and gains can be excluded. If the Legislature had any such
intention for excluding any part of the capital employed in the c
undertaking producing profits and gains of the undertaking, the
Legislature would have and could have easily made suitable provi-
sions. The Legislature must be presumed to have known that the
,_ capital employed in an undertaking may consist of and, in fact,
~ does consist of assessee's own capital and also capital borrowed by
•the assessee. It is common knowledge that most of the undertakings D
carry on their activities with borrowed capital in addition to own
capital employed in the undertakings. Inspite of the knowledge of
the Legislature that undertakings ate carried on with borrowed
capital, the Legislature in its wisdom has in this section mentioned
capital employed in the undertaking for earning profits and gains of E
~ the undertaking without making any distinction between own capital
,._, and borrowed capital and has provided for relief in respect of the
'capital employed in the undertaking on the basis of profits and gains
• of the undertaking earned by virtue of employment of such capital.
It is not disputed and cannot be disputed that profits and gains of
the undertaking to be ultimately included in the total ir come of the F
assessee are produced by the capital, whether assessee's own or
borrowed, employed in the undertaking in the relevant year and while
~ .i"Omputing profits and gains of the undertaking the borrowed capital
• is as important as the assessee's own capital and both play the same
role in earning the profits and gains of the undertaking. It is the
G
capital employed in the undertaking which qualifies for relief under
this section. irrespective of the nature and source of the capital
employed in the undertaking. It is, however, to be emphasised that
the capital to qualify for relief under this section, whether borrowed
or own, must be employed in the undertaking in the previous year
;for earning profits and gains and any capital of the undertaking,
T !Jorrowed or assessee's own which remains idle and is not employed
in the undertaking for earning profits and gains dose not qualify for
any relief under this section,
H
758 SUPREME COURT REPORTS [1985] 2 S.C.R.
A
Sub-section 4 of S. 80J lays down the conditions which have
••
to be fulfilled by an undertaking to qualify for the relief granted \.-
under this section. Even in this sub-section there is no indication
that any undertaking set up with borrowed capital or with capital
part of which may be borrowed will not be entitled to the benefits
of this section. An industrial nndertaking which satisfies all the
conditions laid down in sub-section 4 will undoubtedly be entitled to
the benefits of S. 80J. An undertaking with., borrowed capital can ,,_
also very well satisfy the conditions of sub-section (4) and qualify 1 •
for the relief, as there is notliing in this sub-section which prevents
an underiaking set up with wholly or partly borrowed capital from
c fulfilling the conditions laid down in the sub-section 4. An under-
taking satisfying all the conditions in sub-section (4) and thereby
qualifying for relief if, however, set up with borrowed capital, will
be denied the relief to which the undertaking in terms of the clear
provisions of the section is justly entitled, morely on the ground ,.
that the rule prescribed for computing the relief excludes the borrowed.._
D capital in the computation of the capital employed for the purpose
of granting the relief under this section. In other words, an industrial
undertaking qualifying for the relief under S. 80J by virtue of the
clear and unambiguous provisions made in the section will be denied
the relief because of the rule, as on computation on the basis of the
rule excluding borrowed capital, no relief will be available. As the
E
sub-section in clear and unequivocal terms provides that S. 80J will "
apply to such an undertaking, the benefit intended to be given to,
the undertaking under this section cannot be denied to such an
undertaking by any rule which will clearly have the effect of •
negativing the clear and unambiguous statutory provisions.
F
The argument of Mr. Palkhivala that the expression 'capital .
employed' is a term of art and is usually understood in businesl\,. ..
parlance and commercial circles and also in commercial accountancy
in the sense that it includes not only owner's capital but also borrowed
G capital, particularly if the borrowing is on a long term basis, to my
mind, has considerable force. It may be true that in different context
and particularly in the context of return of capital, capital employed •
may not include borrowed capital. Unless the content otherwise
requires and except in the case of return of capital, the expression
'capital employed' in its ordinary sense is understood to includ~ ...,.
borrowed capital. It refers to the capital, whatever may be the sourc6,
which is employed in any undertaking or venture for carrying on th:e
,H business for the purpose of earning the profits and gains.
LOHIA MACHINES v. (A.N. Sen, J.) 759

In the instant case, the words 'capital employed' have to be
A
, understood and interpreted in the context the said words have been.
-., used in S. 80J. It is quite clear from the text of the section that the
words capital employed have been used in the context of the capital
which has been employed in the under-taking for producing profits
and gains of the undertaking in the relevant year. If borrowed capital
B
is also employed in the undertaking, capital employed necessarily
and clearly includes such borrowed capital which has teen employed
* "' in the undertaking and which has contributed to the profits and
gains of the undertaking. To my mind, therefore, on a proper inter-
pretation, section 80J is clear language postulates that capital employed
in the undertaking includes own capital and also borrowed capital c
employed in the undertaking in the relevant year and the section
plainly and unequivocally makes this intention of the Parliament
manifestly clear.

As the Section is clear and unambiguous it is indeed not proper
and necessary to refer to any other consideration for its construction.
rt may, however, be pointed out that this interpretation not
only makes perfect sense but also clearly promotes the object for
which this section was incorporated. To my mind, the object of
S. 80J which indeed replaces the earlier section 84 which came in
place of S. !SC of the earlier Income-Tax Act, is to give impetus
and encouragement to the setting up of new industrial undertaking E
by offering tax incentives or tax reliefs. The object clearly is to
\ encourage persons to set up new industrial undertakings for rapid
industrialisation of the country by offering incentives in respect of
undertakings covered by this section by way of grant of tax relief on
the capital employed in such undertakings. F

In the case of Textile Machinery Corporation v. Commissioner
of Income-tax, West Bengal,(1) this Court while considering the object
..t of a similar provision in S. l 5C observed at page 202:-

''The principal object of section 15C is to encourage
setting up of new industrial undertaking by offering tax
incentives within a period of 13 years from April I, 1948.
Section I SC provides for a fractional exemption from tax of
profits of a newly established undertaking for five assessment
years as specified there in. This section was insertedin the Act
in 1949 by section 13 of the Taxation Laws (Extension to

(I} (1977) 107 I.T.R. 19~. H
760 SUPREME COURT REPORTS [1985] 2 S.C.R.
A Merged States and Amendment) Act 1949 (Act 67 of 1949),
extending the benefit to the actual manufacture or produc-
tion of articles commencing from a prior date, nemely,
April I, 1948. After the country had gained independence
in 1947 it was most essential to give fillip to trade aud
industry from all quarters. That seems to be the background
B for insertion of section !SC.

It is also significant that the limit of the number of J-. ..
years for the purpose of claiming exemption has been
progressively raised from the initial 3 years in 1949 to 6
years in 1953. 7 years in 1954, 13 years in 1956 and 18 years
in 1968. The incentive introduced in 1949 has been thus
stopped up ever since and the only object is that which we
have already mentioned."

In the case of Rajapopa/ayan Mills Ltd. v. Commissioner of ,._
D Income Tax Madras,( 1 ) this Court had also held at page 783: ~
...
"The law of income-tax in a modern society is intended
to achieve various social and economic objectives. It is often
used as an instrument for accelerating economic growth
and development. S. ! SC is a provision introduced in the
E
Indian I.T. Act, 1922, with a view to carrying out this
objective and it is calculated to encourage setting up of new
industrial undertakings in the country." i

The rapid industrialisation of the country for economic growth
. li' in the larger interests of the country is the main object of this section
which seeks to afford an incentive· or tax relief to new industrial
undertakings which satisfy the requirements of the section.

To my mind, the argument of the learned Attorney General > .
that the provision contained in the Section requiring 'the capital
G employed to be computed in the manner prescribed' authorises
the rule making authority to include or to exclude borrowed
capital at its discretion by making appropriate provision in the
rules as to exclusion of a part of the capital employed for compu-
tation of capital employed for the purpose of granting relief under
the section is clearly untenable. The section only enjoins 'that capital
employed is to be computed in the manner to be prescribed and the ) ~

H (I) (1976) 115 ITR 777.
LOHIA MACil!NBS v. UNION (A.N. Sen, J.) 761

manner of computation of the capital employed only authorises A
the rule making authority to deal with the details regarding compu-
• -..i
)
talion of capital employed for carrying out the provisions of the
section and the provision regarding the manner of computation
does not empower or authorise the rule making authority to lay
down which part of the capital employed or how much of it will B
have to be included or excluded and to what extent, if any: The

'
.. question whether there should be any such exclusion or inclusion
in the matter of consideration of the grant of relief, is essentially a
matter of policy for the Legislature to decide and is not a matter for
the rule making authority to prescribe. The power of the rule making
authosity in terms of the provision contained in section 295 of the c
Income-tax Act which confers such power is limited to the framing
of rules for carrying out the purposes of the Act. The rule making
authority is not competent to prescribe any rule which will be in
the nature of a substantive provision of the Act itself and more
~
• particularly, which will be in conflict with the substantive provision
• of the section itself and which will in any way defeat or frustrate D
the purpose for which any provision in the Act has been enacted.
In the instant case I am clearly of the opinion on a construction of
S. 80J that the said section unequivocally and in clear terms provides
that capital employed for earning the profits of the undertaking is
the capital which is entitled to the benefit of the relief. The exclusion E
of borrowed capital by the rule making authority in the rules
•
" prescribed for computation of the relief under S. 80J is inconsistent
' with and derogatory to the provisions of the statute. The said rule
not only fails to carry out the purpose of the said section but in fact
tends to defeat the same and the rule runs clearly contrary to the
provisions of the statute. The rule excluding borrowed capital must, F
therefore, be held to be bad and_ invalid.

_. The argument of Mr. Palkhivala that any such rule framed by
the rule making authority including or excluding any part of the
capital employed in the undertaking in the absence of any guideline
will also be clearly beyond the power of the rule making authority, G
to my mind. is sound. In the section itself or in any other provision
of the Act it does not appear that there is any provision laying down
any guideline which may entitle the rule making authority to exclude
any part of the capital employed, whether it is borrowed capital or
own capital. No such provision or guideline is there in the Act. To
my mind, there could not possibly be any snch provision or guideline
in the Act, as the section itself clearly provides that the entire
amount of capital employed for earning the profits will qualify for H
762 SUPREME COURT REPORTS (1915] 2 S.C.R.

the relief. If it be held that the rule making authority enjoy~ and such
__ power of excluding any part of the capital employed in the under-
taking because of the provision in the section regarding "compu- •
tation of capital employed in the manner prescribed" it must
necessarily be held that the rule making authority enjoys the power
·-
of framing a rule contrary to the provision of the section. It must
furl.her be held that the rule making authority at its discretion
enjoys the power to exclude the whole or part of owner's capital and
. also the whole or part of the borrowed capital. This interpretation
.. will mean that uncanalised power will be available with the rule
. \

making authority which at its discretion and in the absence of any
guideline will be entitled to exclude any or every part of the capital
. employed even to an exce'nt of rendering the section itself nugatory .
.This interpretation will have the effect of justifying a delegation of
power to the rule making authority to an extent which cannot be
_permitted, I have no hesitation in coming to the conclusion that the
rule making authority does not enjoy any such power or jurisdiction.
No such power or jurisdiction in the absence of specific provision
and clear guideline in the Act could be delegated to the rule making
authority.

In the case of Sales Tax Officer v. K.S. Abraham(l) this Court
had the occasion to construe the meaning of the phrase "in the
prescribed manner" occuring in S. 84 of the Central Sales-Tax Act,
1956. In dealing with the vires of rule 6 of the Central Sales Tax
'(Kerela) Rules, 1967 in so far as the said rule purported to prescribe •
a time limit within which the declaration was to be filed by the
registered dealer, this Court held,- .
-F
' "In our opinion, the phrase 'in the prescribed manner'
occurring in S. 8 (4) of the Act only confers power on the
rule making authority to prescribe a rule stating what parti-
culars are to be mentioned in the prescribed form, the
nature and value of the goods sold, the parties to whom
G they are sold, and to which authority the form is to be
furnished. But the phrase 'in the prescribed manner' in S. 8
(4) does not take in the time element. In other words, the
section does not authorise the rule-making _authority to
prescribe a time-limit within which the declaration is to be
filed by the registered dealer. The view that we have taken
is supported by the language of S. 13 (4) (g) of the Act
.r '
ff (I) [1967] 3 S.C.R. 518.
LORIA MACH~V. UNION (A.N. Sen, J.) 763
A
which states that the State Government may make rules for
'the time within which, the manner in which and the autho-
rities to whom any change in the ownership of any business
or in the name, place or nature of any business carried on
by any dealer shall be furnished.' This makes it clear tliat
the Legislature was conscious of the fact that the expression B
'in the manner' would denote only the mode in which an
act was to be done, and if any time limit was to be prescri-
bed for the doing of the act, specific words such as 'the
time within which' were also necessary to be put in the
statue.
c
The Privy Council in the case of Utah Construction & Engi-
neering Pvt. Ltd. and Anr. v. Pataky,(1) observed at pages 653-654:

"Their lordships now pass to S. 22 (2) (g) (iv) and (v).
Sub-paragraph (iv) empowers the Governor to make regu-
lations "relating to the manner of carrying out .... axcavation
D
work'. The relevant portion of reg. 98 provides 'Every
drive and tunnel shall be securely protected and made safe
for persons employed therein'. The expression 'manner of
carrying out' the work plainly envisages a system of working,
and does not in their lordships view justify a regulation E
imposing an absolute duty of protecting the drive and
• tunnel or an absolute duty of ensuring the safety of persons
\ employed Ill the drive or tunnal. The relevent portion of reg.
98 does not prescribe the manner of doing the work. Sub-
paragraph (iv) therefore cannot in their lordships opinion
empower the making of the relevant portion of reg. 98."

The proposition that the rule making authority does not have
any power to encroach upon any substantive provision in the statute
appears to be beyond dispute. By virtue ofS.295 (I) of the Income-tax
Act, the rule making authority is empowered to make rules for carry- G
ing out the purposes of the Act and sub-section 2 which specifically
refers that such rules may provide for all or any of the matters men-
tioned in the said subsection does not make any reference to S. 80J.
In prescribing the manner of computation of capital employed, the rule
making authority, in the absence of specific provision in the section
itself or in the absence of any statutory provision, cannot exclude any

(I) (1965] 3 All. E R. 650. H
764· SUPREME COURT REPORTS [1915) 2 S.C.R.

part of the ca.Jital employed in the undertaking at its discretion under
A the guise of the process of prescribing the manner of computation.

The argument of the learned Attornney General that as an
undertaking which employs borrowed capital gets relief because in
calculating the profits and gains the interest paid on the borrowed
capital is taken into account, the rule making authority in prescribing
the manner of computation of capital employed is entitled to exclude
borrowed capital to avoii grant of double relief to the undertaking,
is without any m'rit. Interest paid on borrowed capital by any
dnuertaking, whether it is an undertaking within the meaning of S.SOJ
or not, is taken into account as business expenditure in calculating the
profits and gains of any undertaking. It is the prescribed mode of
c calculating the profits and pins of every undrtaking and is no special
benefit for any undertaking: and, undoubtedly it affords no incentive
of special relief to a new undertaking which has necessarily to satisfA
the required conditions laid down iu S SOJ for being entitiled to
the relief intended to be granted to an undertaking which comes
D within the purview of S.SOJ. In any event, such inclusion or exclusion
on any consideration will be a matter of policy to be determined by
the Legislature and not a matter for the rule making authority to
lay down in prescribing the mode of computation.

The decision of the Calcutta High Court in the case of Century
Enka Ltd. v. I.T.0.,( 1) the decision of the Madras High Court in the
case of Madras b;dustrial Linings Ltd. v. I.T.0.(2 ), the decision of the
Allahabad High Court in Kota Box Manufacturing Co. v. I.T.O.(')
'
the decision of the Punjab and Haryana Hige Court in the case
of Ganesh Steel Industries v. I.T.O.('), the desision of the Andhra
F Pradesh High Court in the case of Warner Hindustan Lid. v. I.T.0.(6)
holding the rule to the extent it excludes borrowed capital in the
computation of capital employed for the purpose of granting
relief under section 80J to be invalid, are correct and I have no
hesitation in upholding these decisions. The contrary view expressed
by the Madhya Pradesh High Court in the case of Commissoiner of
Income Tax, M.P. II v. Anand Bahri Steel and Wire Products(') must
necessarily be held to be erroneous.

(!) [1977] 107 !TR 123.
(2) [1977] 110 !TR 256.
(3) [19801123 !TR 638.
(4) [1980] 126 !TR 258.
J
(5) [19821134 !TR. 158.
(6) 11982] 133 !TR 365.
H
tOlt!A MACtl!N8S V, u~rnl (A"ll/.S: 1.1.) 15i
It may be noticed that the M1dhya Pt'd:;h Hil1 Ciict prJ:J:·
A
ded to hold the rule to be valid mainly on the ground that this rule
has been in existence for a long time under S.!5C of the earlier Act
which subsequently came to be replaced by S.80J and the Parliament
must have been aware at the time of enacting S.80J of the existence
of the rule framed bY the rule making authority which held the field
for a long period without any challenge. The decision proceeds on B
the basis that the Parliament must have, therefore, accepted the
interpretation put by the rule making authority at the time the
Parliament enacted S 801. This decision does not take into considera-
tion the fact that the interpretation put by the rule making authority
has not been the same all throughout and has undergone changes
from time to time and the rule making authority has in certain years c
also permitted certain classes of borrowed capital to be taken into
account in computation of capital employed for the purpose of relief.
The decision of the Madhya Pradesh High Court does not also take
into consideration the question whether the rule seeking to include
or exclude borrowed capital at the discretion of the rule making
authority in the absence of any statutory provision or guideline, D
becomes bad on account of unjustified excessive delegation of
authority. This decision of the Madhya Pradesh High Court has not
proceeded to construe S.80J correctly to gather the true intention of
the Parliament before deciding the question as to whether the rule
excluding borrowed capital is consistent with the intention of Parlia- E
ment clearly expressed in S.80J.
In my opinion, the mere existence of an invalid rule without
\
any challenge for any length of time does not affect the question of
validity of the rule and cannot render a rule otherwise invalid to be
valid only on the ground that the rule had remained in existence
without any challenge for a number of years. In the case of Propriet- F
ary Articles Trade Association v. Attorney Genera/for Canada('), the
Judicial Committee while considering the vires of a statute namely,
Combines Investigation Act R.S. Can. 1927, c. 26 passed by the
Parliament of Canada observed at p. 317 :-
"Both the Act and the section have a legislative history, G
which is relevant to the discussion. Their Lordships enter-
tain no doubt that time alone will not validate an Act which
when challenged is found to be ultra vires ; nor will a
history of a gradual series of advances till this boundary is
finally crossed avail to protect the ultimate encroachment."

In the case of Campbell College Belfast (Governors) v. Commis-

(I) [1931] A.C. 310. H
766 SUPREME COURT REPORTS (1985] 2 S.C.R.
A sioner of Valuation for Northern Ireland(l), the House of Lords while
considering the validity of payment of rates by fee paying public
school in Northern Ireland which has continued for over 132 years \
\,.-
despite the terms of s. 2 of the Valuation (Ireland) Act Amendment
Act, 1954, held at p. 941 to 942 :-

"My Lords, for my part I am quite unable to apply that
principle to a statute although it was passed over 100 years
ago, but its language is plain and unambiguous and it was
not misconstrued until the decision in the Alexandra College
case 60 years later. True it is that fee paying schools did
always pay rates in accordance with section 2, but until 1914
c that was not because it was assumed that section 2 was con-
trolled by the proviso, and that charitable purposes bore a
limited meaning. It may have been that it was thought that
if some of the pupils were free paying, section 16 of the Act
of 1852 was not satisfied. That argument is now untenable
and, as Black L.J. pointed out at an early part of his judg-
D
ment, Campbell College is clearly for this purpose a chari-
table institute. My Lords, in these circumstances I can
attach no weight whatever to this long unquestioned pay-
ment when construing section 2. To my mind, this doctrine
can have no application to the circumstances of this case.

It is also well-settled that even if the rules have been laid before
.the Parliament and there is a resolution of the Parliament approving
the rules, the validity of the rules has to be declared by the Court
and the Court can declare any rule placed before the Parliament
and approved by the Parliament to be ultra vires the Act and invalid.
F Jn the case of Kera/a State Electricity Board. v. Indian Alumlnium(2).,
this Court held at p.576 :-

"In India many statntes both of Parliament and of
State Legislatures provide for subordinate legislation made
under the provisions of those statutes to be placed on the
table of either the Parliament or the State Legislature and to
be subject to such modification, amendment or annulment,
as the case may be, as may be made by the Parliament or
the State Legislature. Even so, we do not think that where
an executive authority is given power to frame subordinate
legislation within stated limits, rules made by such authority

(I) [1964] 1 W.L.R. 912.
,H (2) [1976] 1 S.C.R.'552.
LOI!IA MACfl!NBS v. UNION (A.lV. Sen, J.) 161
if outside the scope of the rule making power should be A.
I deemed to be valid merely because such rules have been
~
placed before the legislature and are subject to such modi-
fication, amendment or annulment, as the case may be, as
the legislature may think fit. The process of such amend-
ment, modification or annulment is not the same as the
II
process of legislation and in particular it lacks the assent
either of the President or the Governor of the State, as the
case may be. We are, therefore, of opinion that the correct
view is that notwithstanding the subordinate legislation
being laid on the table of the House of Parliament or the
State Legislature and b~ing subject to such modification, (
annulment or amendment as they may make, the subordinate
legislation cannot be said to be valid unless it is within the
scope of the rule miking po ver provided in the statute."

The other impugned provision of the rule, prescribing that
capital employed should be computed on the basis of the capital [
employed on the first day of the year, must on a proper construc-
tion of the section be also held to be invalid. The section clearly
provides that the deduction to be allowed is to be computed in the
prescribed manner in respect of the previous year relevant to the
assessment year. The deduction to be allowed is on the profits and
gains of the undertaking earned in the releavant year in respect of the
previous year relevant to the assessment year. Profits and gains
•
\ which are to be taken into account are the profits and gains ear-
ned in the relevant year and the year must necessarily mean and
include the whole of the year and not some days or months of the
year. The capital employed for earning the profits and gains
during the whole year must necessarily be the capital which is entitled
to the benefit of the section. Capital employed on the Ist day of the
year does not produce the profits of the entire rolevant year, unless
the very same amount of capital remains employed throughout the
year. It does not usually happen and in any event it may not happen.
Therefore, by prescribing the !st diy of the year to be the date of
computation of the capital employed, the capital employed during
the whole year is sought to be denied by the. rule the benefit to which
it is entitled under the section. This provision, therefore, is clearly
contrary to and inconsistent with the specific provision of the statute,
as by fixing the I st day of the year to be the date of computation of
the capital employed for the year, the rule making authority is seek-
ing to deny the benefit conferred by the statute.

Andhra Pradesh High Court in the case of Warner Hindustan
768 SUPREME COURT REPORTS (1985) 2 S.C.R·

Ltd. and Anr. v. Income-tax Officer and Ors. (supra) in dealing
with this question has referred to the decision of the Calcutta High
I
Court in Century Enka Ltd. v. Income-tax Officer (supra) on this very '~

point and in agreement with the decisions of the Calcutta High Court,
the Andhra Pradesh High Court held at p. 195 :-

"As observed by a learned Judge of the Calcutta High
Court in Century Enka Ltd. v. Income tax Officer(I),the main
consideration upon which this question has to be resolved is
(p. 132), 'whether having regard to the purpose for which
provisions of S. 80J of the Act was introduced, it was the
legislative intent to restrict the capital employed in any
manner so as to limit it to the first day of the computation
period'. So far as S. 80 J is concerned, it does not give any
such indication. That apart, such computation of capital
employed in an industrial undertaking would defeat the very
purpose of the undertaking and would lead to incongruous
D and anomalous results. While an assessee who has employed
the capital in an industrial undertaking on the very first day
but has withdrawn it for the major part of the year would
be antitled to the full benefit, an assesses who has not em-
ployed the capital on the first day but has employed it dur-
ing the major part of the previous year would be deprived
of the benefit. If the intendment of the Act is to give tax
holiday for the new industrial undertaking with a view to
help them find their roots and encourage enterpreneure to
establish new industrial undertakings and pave the way for
rapid industrial growth in the country then the purpose
would be not served. In fact, it would be defeated if the
capital employed is computed with reference to the first day
of the computation period and not in respect of the previous
year relevant to the assessment year".

The Calcutta High Court and Andhra Pradesh High Court
have both held this part of the rule fixing the first day of the year
for computing the capital employed for the purpose of granting
relief under S. 80J to be invalid. I find no difficulty in upholding the
decision of the Calcutta High Court and of the Andhra Pradesh
High Court on this question.
T know proceed to consider the other question about the vali-
dity of the amendment of section 80J introduced by the Finance 7'
(!) ~19771107 I.T.R. 123.
LOHIA MACHINES v. UNION (A.N. Sen, J.) 769

Act 2 of 1980. By the amendment the provisions contained in the A
rule excluding borrowed capital and fixing the first day of th_e year for
computation of capital employed for the purpose of relief under
S. 80J have been incorporated in the section itself with retrospective
effect from 1.4. 72.

On behalf of some of the assessees the amendment both with B
regard to its prospective and retrospective operation has been
challenged. Dr. D. Pal, supported by other learned counsel, addressed
us mainly on the aspect of prospective operation, while supple-
• menting and supporting the submissions of Mr. Palkhivala on the
aspect of retrospective operation. Mr. Palkhivala who has been the
principal spokesman for the assessees, confined his challenge to the
validity of the amendment mainly to the retrospective part, although
he made it clear that he was not conceding the validity of the pros-
pective operation.

I propose to consider the submission of Dr. Pal in the first
D
' instance. If the submission of Dr. Pal that the entire amendment is
invalid is accepted, the submission of Mr. Palkhivala that the amend-
ment in so far as it is made retrospective is also bad must necessarily
succeed.

Dr. Pal has argued that the amendment seeks to make an
E
nvidious distinction between own capital and borrowed capital in
the matter of granting relief under this section. It is the argument
of Dr. Pal that having regard to the object of the section which is
to promote new industries and to give relief on the basis of the
capital employed in such new industries by way of incentive, distinc-
tion between own capital and borrowed capital is wholly irrelevant F
and does not have any nexus with the object sought to be achieved
and this distinction between own capital and borrowed capital in the
matter of computation of capital employed in the undertaking for the
purpose of granting relief results in unjustified discrimination and is
therefore violative of Art. 14 of the Constitution. To my mind, there
is no merit in the submission of Dr. Pal. It is entirely a matter for G
the Parliament to decide whether any relief by way of incentive
should be allowed and if so to what extent and in what manner.
There is no obligation on the part of the Parliament to make any
provision for granting relief to promote new industries. The Legis-
lature in its wisdom may decide to grant relief and may equally
decide not to grant any relief. It is essentially for the Legislature to
decide as to whether any incentive for promoting industrial growth
of the country is called for and if the Legislature feels that in the 11
11() SUP!i.EME COCRT REPORTS [198S] 2 s.c.R.
A situ1tion pr0vailing in the country such incentive should be provided
it will be again for the Legislature to decide what kind of incentive
and in what form and to what extent the same should be provided
and to pass appropriate legislation in this regard. The Parliament would
have been legally competent to withdraw the entire relief under section
B SOJ and to abrogate the said section in its entirety, if the Parliament
had considered such withdrawal to be necessary. The Parliament is
equally competent to increase or reduce the quantum of relief intended
i.-,
to be given under this section. In providing that relief intended under
S. SOJ would be allowed only to owner's own capital and not to any •
borrowed capital, there can be no infringement of Art. 14. No entrepre- •
c nuer or businessman can claim as a matter of right that relief by way of
incentive should be 12rovided to new undertakings to be set up by him.
The Parliament provides for such relief in pursuance of a policy and
policy may change from time to time in view of the situation prevailing
from time to time. The Parliament may legitimately feel that borrow-
ing by businessman may not be encouraged and persons should be
encouraged to bring their own money for setting up new undertakings '
and Parliament may provide for appropriate relief by way of incentive
D to the owner's capital employed to the exclusion of borrowed capital
in the setting up of any new industrial undertaking. Whether it is
prodent to do so is essentially a matter for the Parliament in its
wisdom to decide. It is not for this Court to sit in judgment over
E the wisdom of the Parliament in the framing of its policy. The
discrimination in the matter of grahting relief to own capital to the r
exclusion of borrowed capital in pursuance of a policy cannot be
said to be violative of Art. 14, as the two classes of capital, though
forming a part of the total capital of the undertaking, are distinct
and they stand on a different footing. A classification between these
two classes of capital for encouraging investment of own capital in
setting up new industrial undertakings, cannot be held to be unreaso-
nable and unjustified. The contention of Dr. Pal that the amendment
in discriminating between borrowed capital and owner's own capital
in the enjoyment of relief under section 80J infringes Art. 14, must
-G therefore, be rejected. Very properly in challenging the validity of
the amendment in so far as it operates prospectively, no grievance
in regard to violation of Art. 19 of the Constitution has been made.
I now pass on to the question of the validity of the amend·
ment with retrospective effect from 1.4 I 972.

It bas been contedned by the learned counsel for the assessees T '
that the retrospective operation of the provision is unreasonable,
H arbitrary and violative of Arts. 14 and 19 of the Constitution. The
LO!lIA MACHINES v. UNION (A.N. Sen, J.) 771

- main argument is that the withdrawal of relief granted by the statute
before the present amendment and lawfully enjoyed by the assessee
during all these years and thereby imposing on the assessee an unjust,
unmerited and accumulated huge financial liability, cannot be consi-
dered to be reasonable; and such imposition of accumulated liability
will seriously affect the financial stability of the undertakings and
A

will further create various other difficulties which may be almost B
impossible for the assessees to overcome. It bas been argued that the
present amendment has not been necessitated as a result of any pro-
vision of the statute being declared ultra vires for any lacuna in the
statutory provision and there is no question of any liability being foisted
on the Government of refunding any large sun of money collected as
tax from the assessees on account of any statutory provision impo-
c
sing any levy being declared invalid or unconstitutional. It is
submitted that in view of the unequivocal provision of the statute
granting relief to borrowed capital which was sought to be negated
• and denied by an invalid rule which has been struck down, the
assessees are legitimately entitled to the relief and they have rightly D
and justifiably arranged their affairs on the basis of the law as it
stood. The existence of an invalid rule and the pendency of appeals
in this Court against the judgment of the various High Courts
declaring the rule to be invalid cannot be considered to be relevant
factors, particularly when the statutory provision is clear, for guiding
the assessee who has to carry on its normal trading activities, in E
arranging its affairs. The submission is that the withdrawal or relief
lawfully granted and properly enjoyed by the assessees after this
Jong lapse of time, when no serious prejudice is caused or is likely
to be caused to the public exchequer and on the other hand a heavy
unwarranted financial burden alongwith other difficulties and prob-
lems are created for the assessee, cannot be said to be in public
F
interest and must be held to be unreasonable, arbitrary and violative
of Art. 14 and 19 of the Constitution.
The learned Attorney General bas submitted that retrospective
operation of the provision does not suffer from any infirmity and is
not arbitrary or unreasonable nor is it violative of Art. 14 and 19 of
the Constitution. He argues that prior to rule 19-A being considered
by some of the tribunals and by various High Courts, the said rule G
excluding borrowed capital in the matter of computation of relief
and fixing the 1st day of the year as the relevant date for the compu-
tation of relief has remained in force for a number of years. It is his
argument that after the said rule bad been struck down, the validity
of the decisions bas been challenged and was pending appeal in this
court; and the appeal was pending at the time when the present H
772 SUPREMB COURT REPORTS [1988] 2 S.C.R.

-
A am~ndmJnt c1m~ to b~ enacted in 1980. The Learned Attorney
General contends that as rule 19-A excluding borrowed capital and
fixing the first day of the year as the date for computation of relief
had remained in force for a number of years and as· the decision
striking down the rule is now pending appeal, the assessees were not
justified in arranging their affairs on the basis of the said rule being
B invalid and as prudent men of business they should have so arranged
their affairs as to cover every contingency and particularly th.e
contingency of the validity of the rule being upheld by this Court.
The Learned Attorney General has submitted that the amendment •
has been introduced before the decision of this Court in the pending
appeals, as the Parliament wanted to clarify the position in the
c interest of all concerned and more so in the interest of the assessees
to enable the undertakings which qualified for relief under S. 80J
to enjoy the benefit intended to. be conforred by the Section. It is
the submission of the Learned Attorney General that in the absence
of any valid rule prescribing the manner of computation of relief to • ..
D which the assessee may be entitled under S. 80J, the benefit cannot
be computed and, therefore, no benefit contemplated under S. 80J
may be at all available to the assessees. He submits that if the rule
is held to be valid by this Court in these appeals, the arguments of
the assessee that the assessee has arranged its affairs on the basis
of invalidity of the rule will be of no avail; and he further submits
that if the invalidity is upheld by this Court in these appeals, the
E assessee in the absence of any valid rule prescribing the manner of
computation of the relief will not be entitled to the benefit of any J

relief under the section. It is his submisson that in these circumstances
the Parliament with the object of seeing that the assessee who is
entitled to any relief under S. 80J is not denied such relief over these
years for lack of provision of a suitable rule prescribing the manner
of computation of such relief, has amended the section itself with
F
retrospective effect from 1972 in the interest of the assessees them-
selves. It is the submission of the Attorney General that as the
amendment with retrospective effect has been made essentially in the
interast of the assessees to enable them to enjoy the relief intended
to be given under S. 80J, the retrospective effect of the amendment
G cannot be said to be unreasonable or arbitrary and the retrospective
a 11'1J 11' 1 t dose not violate either Art. 14 or 19 of the Constitution,
even if the retrospective effect may operate harshly on some
assessees.
Before considering the arguments advanced on behalf of the
parties, I propose at this stage to refer to some of the decisions cited
from the Bar on this aspect.
LOHIA MACHINES v. UNION (A.N. Sen, J.) 773

In the case of Epari Chinna Krishna Moorthy, Proprietor Epari A
Chinna Moorty and Sons, Berhampur Orissa v. State of Orissa,(1} it
was observed at p. 191:-
"'
"Mr. Sastri also argued that the retrospective operation
of the impugned section should be struck down as unconsti-
tutional, because it imposes an unreasonable restriction on B
the petitioners' fundamental right under Art. 19 (I} (g). It
_,. is true that in considering the question as to whether legis-
>
!alive power to pass an Acl retrospectively has been reaso-
nably exercised or not, it is relevant to enquire how the
retrospective operation operates. But it would be difficult
to accept the argument that because the retrospective opera-
c
lion may operate harshly in some cases., therefore, the
legislation itself is invalid. Besides, in the present case, the
retrospective operation dose not spread over a very long
. •, period either . Incidentally, it is not clear from the racord
that the petitioners did not recover sales tax from their
customers when they sold the gold ornaments to them". ,D

In the c;ise of Rai Ram Krishna & Ors. v. State of Biharf). this
Court observed at pp. 914-917:-
"Mr. Setalvad contends that since it is not disputed
) that the retrospective operation of a taxing statute is a rele-
vant fact to consider in determining its reasonableness, it E
' may not be unfair to suggest that if the retrospective opera-
tion covers a long period like ten years, it should be held
to impose a restriction which is unreasonable and as such,
must be struck down as being unconstitutional. In support
of this plea, Mr. Set1lvad has referred ns to the observations
made by Sutherland. 'Tax Statute,' says Sutherland, 'may
be retrospective if the legislature clearly so intends. If the F
_;; retrospective feature ofa law is arbitrary and burdensome,
the statute will not be sustained. The roasonableness of each
retrospective tax statute will depend on the circumstances of
each case. A statute retroactively imposing a tax on income
.. earned between the adoption of an amendment making ,.._/

income taxestes legal and the passage of the income tax Act
G
is not unreasonable. Likewise an Income tax not retroactive
beyond the year of its passage is clearly valid. The longest
~ -i
'· (I) (1964 7) S.C.R. 185.
(2) (1964] 1 S.C.R. 897. H
•
174 SUPREME COURT REPORTS [1985] 2 s.c.a.
period of retroactivity yet sustained has been three years.
A
In general, income taxes are valid although retroactive, if
they affect prior but recent transaction.' Basing himself on
~

these observations Mr. Setalvad contends that since the
period covered by the retroactive operation of the Act is
between April 1, 1950 and september 25, 1961, it should be
held that the restrictions imposed by such retroactive opera-
B tion are unreasonable, and so, the Act should be struck
down in regard to its retrospective operation. We do not k
thiuk that such a mechanical test can be applied in deter,
mining the validity of the retrospective operation of the Act.
'
It is conceivable that cases may arise in which the retros-
pective operation of a taxing or other statute may introduce ·
G
such an element of unreasonableness that the )estrictions
imposedby it may be open to serious challenge as unconstitu-
tional, but the test of the length of time covered by the retros-
pective operation cannot, by itself, necessarily be a decisive
test. We may have a statute whose retrospective operation
.\
..
D covers a comparatively short period and yet it is possible that
the nature of the restriction imposed by it may be of such a
character as to introduce a serious infirmity in the retrospec·
tive operation. On the other hand we may get cases where the
period covered by the retrospective operation of the statute,
though long, will not introduce any such infirmity. Take the
E case of a Validating Act. If a statute passed by the legislature
is challenged in proceedings before a Court, and the challen- ,"'
ge is ultimately sustained and the statute is struck down,
it is not unlikely that the judicial proceedings may occupy
a fairly long period and the legislature may well decide to
await the final decision in the said proceedings before it
p uses its legislative power to cure the alleged infirmity in the
earlier Act. In such a case, if after the final judicial verdict
is pronounced in the matter the legislature passes a validat- _t..
ing Act, it may well cover a long period taken by the
judicial proceedings in Court and yet it would be inappro·
priate to hold that because the retrospective operation
G covers a long period, therefore, the restriction imposed by
it is unreasonable. That is why we think the test of the
length of time covered by the retrospective operation cannot
by itself be treated as a decisive test".
It the case of Jawaharlal v. State of Rajasthan & Ors.( 1) this _'r ....
Court held at p. 905:-
H (I) (1966] l S.C.R. 890.
LOIITA MACHINES v. UNION (A.N. Sen, J.) 775
"We have already stated that the power to make laws A
involves the power to make them effective prospectively as
well as retrospectively, and tax laws are no exception to
this rule. So it would be idle to contend that merely because
a taxing statute purports to opera! retrospectively, the retros-
pective operation per se involves contravention of the funda-
mental right of the citizen taxed under Art. 19(1)(fJ or (g). B
It is true that cases may conceivably occur where the Court
may have to consider the question as to whether excessive
retrospective operation prescribed by a taxing statute
•
amounts to the contravention of the citizens' fundamental
right; and in dealing with such a question, the Court may C
have to take into account all the relevant and surrounding
facts and circumstances in relation to the taxation".

In the case of Assistant Commissioner of Urban Land Tax v.
The Buckingham & Carnatic Co. Ltd.' etc. it was observed at P.287:-
D
"It is contended on behalf of the petitioners that the
retrospective operation of the law from !st July, 1963 would
make it unreasonable. We are unable to accept the argument
of the petitioners as correct. It is not right to say as a
general proposition that the imposition of tax with retros-
pective effect per se renders the law unconstitutional. In E
applying the test of reasonableness to a taxing statute it is
of course a relevant consideration that the tax is being
enforced with retrospective effect hut that is not conclusive
in itseif".

In the case of M/s. Krishnamurthi & Co. Etc. v. State of
Madras & Anr.(2) this Court observed at P. 61:- F

"The object of such an enactment is to remove and
rectify the defeat in phraseology or lacuna of other nature
and also to validate the proceedings, including realisation
of tax, which have taken place in pursuance of the earlier
enactment which has been found by the Court to be vitiated
G
by an infirmity. Such an amending and validating Act in
the very nature of things has a retrospective operation. Its
aim is to effectuate and carry out the object for which the
earlier principal Act had been enacted. Such an amenclmg

(I) [1970] I S.C.R. 268.
(2) [1973] 2 S.C.R. 54.
776 SUPREME COURT REPORTS [1985] S.C.R.
A and validating Act to make ·small repairs' is a permissible
mode of legislation and is frequently resorted to in fiscal
enactments."

Similar observations have been made by this Court in the case
of Hira Lal Rattan Lal etc. etc, v. State of U.P. & Anr. etc(') at
B
p. 5ll:-

"A feable attempt was made to show that the retros-
pective levy made under the Act is violative of Art. 19(1)
(f) and (g). But we see no substance in that contention. As •
seeri earlier, the amendment of the Act was necessitated
c because of the legislature's failure to bring out clearly in the
principal Act its intention to separate the processed or
spilit pulses from the unsplit or unprocessed pulses.
Further the retrospective amendment became necessary as
otherwise the State would have to refund large sum of
money".
D
In the case of State of Gujarat v. Ramanalal Keshave Lal Soni(2),
this Court observed at p. 62:-

"The Legislature is undoubtedly competent to legislate
with retrospective effect to take away or impair any vested
right acquired under existing laws but since the laws are
E made under a written Constitution, and have to conform to
do's and don'ts of the Constitution; neither prospective nor
retrospective laws can be made so as to contravene funda-
mental rights. The law must satisfy the requirements of the
Constitution today taking into account the accrued. or
acquired rights of the parties today. The law cannot say 20
F years ago the parties had no rights, therefore, the require-
ments of the Constitution will be satisfied if the Jaw is dated
back by 20 years. We are concerned with today's rights and
not yesterday's. A legislature cannot legislate today with
reference to a situation that obtained 20 years ago and
ignore the march of events and the constitutional rights
accrued in the course of the 20 years. That, would be most .'
arbitrary, unreasonable and a negation of history".

The power and competence of the Parliament to amend any )' -

(I) (1973) 2 S.C.R. 502.
(2) (1983) 2 s.c.c. 33.
LORIA MACHINES v. UNION (A.N. Sen, J.) 777
statutory provisiou with retrospective effect cannot be doubted. Any A
retrospective amendment to be valid must, however, be reasonable
and not arbitrary and must not be violative of any of tbe fundamental
rights guaranteed under the Constitution. The mere fact that any
statutory provision has been amended with retrospective effect does
not by itself make the amendment unreasonable. Unreasonableness
or arbitrariness of any such amendment with retrospective effect has B
necessarily to be judged on the merits of the amendment in the light
of the facts and circumstances under which such amendment is made.
,,
In considering the question as to whether the legislative power to
amend a provision with retrospective operation has been reasonably
exercised or not, it becomes relevant to enquire as to how the
retrospective effect of the amendment operates. c
In the large interest of administration and for promotion of
public interest and welfare of the country power has been conferred
by the Constitution on the Parliament to mobilize resources and to
levy tax. In view of the complexity of fiscal adjustment of diverse
elements the Parliament necessarily enjoys a very wide discretion in D
the matter of fiscal legislation. To meet various expenses for proper
administration, maintenance of defence and security, for promoting
peace and prosperity and for development of social, economic and all
round growth of the country, the Government must have resource
and sufficient funds at its disposal. Suitable provisions have necessarily
to be made for raising the revenue and for proper realisation of funds E
to be collected to meet such expenses. Appropriate legislations inclu-
ding various fiscal Jaws are enacted for this purpose. Imposition of
any tax by the Parliament is therefore considered to be made in
public interest. It may so happen that any provision of any enact-
ment imposing a particular levy may be challenged in Court and may
F
be challenged successfully ; and the particular levy may, for some
reason or other, be held to be constitutionally invalid. If any parti-
cular provision of any statute imposing any tax which has been or is
being collected, is struck down as unconstitutional, the financial
arrangement of the State may become upset and the Government
which might have already collected and even utilised the tax, may be
called upon to refund taxes so collected. lf such a situation arises the G
economy of the State may get unbalanced and difficulties may arise
for meeting the various commitments and obligations. Under such
circumstances a Validating Act may be passed and is often enacted to
remove the infirmities which might have led to the invalidation of the
provision imposing the levy. Validating Acts for meeting such situ-
ations have necessarily to be passed with retrospective operation so
that the fiscal arrangement of the State and its financial commitments H
778 SUPREME COURT REPORTS (1985] 2 S.C.R

A may not in any way be in jeopardy and the State may be relieved of
the liability of refunding any tax already collected. A validating Act
validating any fiscal provision with retrospective operation is usually
held not to be unreasonable or arbitrary. In the case of any Validating
I
-
Act, the intention of the legislature is generally made sufficiently
clear in the section or in the Act which is declared invalid on account
B of some flaw or defect which is within the competence of the Parlia-
ment to rectify. Such Valiuating Acts, it may be observed, do not in >-
fact have the effect of imposing a fresh tax with retrospective effect ~
'
and they only legalise the levy already imposed. There is in effect and
substance no imposition of any new tax for the earlier years by virtue
of the retrospective operation and the retrospective operation merely
c validates the levy already imposed and possibly collected. The present
amendment has been necessitated not as a result of any part of S.
80J being declared invalid. There was no lacuna or defect in section
80J prior to the impugned amendment and the section which was
perfectly valid granted relief in clear and unambiguous language to ""
the assessee in respect of capital employed, whether assesees's own
• "-
D
or borrowed, in an undertaking which qualified for relief under the
section. The rule making authority by framing an invalid rule sought
to deny the assessee the benefit of the relief lawfully and validly gran-
tcd by the section. The rule was contrary to the clear provisions of
the statute and the invalid rule has been rightly struck down. By the

E
present amendment the P~rliament is seeking to validate not any pro-
vision of the State declared invalid because of any flaw or defect, as
"
there was none, but is seeking to validate an invalid rule which had
sought to deprive the assessee of the benefit which the Parliament had
clearly bestowed on the assessee by the section. The eJect of the pre-
sent amendment by seeking to incorporate the provisons of the rule
declared invalid in the section itself is to withdraw with retrospective
F effect the relief which had been earlier granted by the Parliament in
so far as the relief extends to borrowed capital employed in the
,lo:'
undertaking and thereby to impose on the assessee a burden of tax
which was not there for all these years. As a matter of policy it may
be open to the Parliament to withdraw the relief granted to borrowed
capital by an amendment with prospective effect consequent on any
such amendment. To withdraw with retrospective effect the benefit of
G relief unequivocally granted by the section to an assessee who quali-
fled for such relief and was lawfully entitled to enjoy the benefit of
such relief and has in fact in many cases enjoyed the benefit for all
)-
these years, prior to the present amendment with retrospective effect,
cannot, in my opinion, be said to on any just and valid grounds and
cannot be considered to be reasonable. If any fiscal statute grants
relief to any assessee and the assessee enjoys the benefit of that relief,
tt
LOHIA MACHINES v, UNION (A.N. Sen, J.) 779
as the assessee is legally entitled under the statute, the withdrawal of
the relief validly and unequivocally granted and enjoyed by any A
assessee must necessarily in the absence of proper grounds be held to
be unreasonable and arbitrary. The relief granted under section SOJ
before the present amendment was not merely a promise on the part
of the Government relying on which the assessee might have set up
new undertakings, but it was in the nature of a statutory right confer-
B
red on any assessee mighi have set up new undertakings, but it was in
the nature of a statutory right conferred on any assessee who qualified
for such relief under the section. The withdrawal with retrospective
effect of any relief granted by a valid statutory provision to an
assessee, depriving the assessee of the benefit of the relief vested in
the assessee, stands on a footing entirely different from the footing c
which may necessiate the passing of a Validating Act seeking to vali-
date any statutory provision declared unconstitutional. When Parlia-
ment passes an amendment validating any provision which might have
been declared invalid for some defect or lacuna, the Parliament seeks
to enforce its intention which was already there by removing the
defect or lacuna. The Parliament indeed seems to remedy the situation D
created as a result of the statutory provision being declared invalid.
As I have earlier observed, this is done in public interest for properly
regulating the fiscal structure and to relieve the Government of any
financial burden by way of refund of taxes collected for enabling the
State to implement its budget by proper collection of revenue expec-
E
ted to be realised. When the Parliament in any fiscal statute proposes
to grant any relief to any assessee the Parliament must be presumed
to do so in public interest. In the instant case section SOJ granted
relief for the purpose of promoting the industrial growth of the
country by affording incentive for the setting up of new undertakings.
As a matter of policy again the Parliament may withdraw such relief F
or any part thereof or modify the nature, extent and kind of relief, if
Parliament may withdraw such relief or any part thereof or modify
the nature, extent and kind of relief, if Parliament in its wisdom may
consider any such action necessary and proper and any such act done
by the Parliament must also be regarded to have been done in public
interest. However, the withdrawal or modification with retrospective
effect of the relief properly granted by the statute to an assessee which G
the assessee has lawfully enjoyed or is entitled to enjoy as his vested
statutory right depriving the assessee of the vested statutory right,
has the effect of imposing a levy with retrospective effect for the years
for which there was no such levy and cannot, unless there be strong
and exceptional circumstances justifiying such withdrawal or modi-
fication, be held to be reasonable or in public interest. This kind of
retrospective amendment, seeking to defeat an accrued statutory right
H
780 SUPREME COURT REPORTS (1985] 2 S.C.R.

is likely io affect the sanctity of any statuory provision and may
A create a state of confusion. The only circumstance which appears to
have Jed to the present retrospective amendment is the existence of \ ..
the invalid rule. The existence of any invalid rule seeking to deny an
assessee a benefit clearly and unequivocally granted to an assessee by
the Legislature, lawfully and properly enjoyed or to be impugned
amendment in 1980 the relief granted by S. 80J had been in force and
B had been legitimately available to the assessee. In view of the clear
provision made in the statute by Parliament itself the Parliamant
must be presumed to have been aware that the relief as contemplated
under S. 80J was available to the assessee and the assessee had been •
enjoying and were entitled to enjoy the benefit of the said relief. The
c Parliament must have and in any event must be presumed to have
arranged the financial affairs of the State on the footing that the relief
allowed to an assessee under S. 80J was being enjoyed and would be
enjoyed by the assessee In view of the clear provision of the statute
which must be held to manifest the true intention of the Parliament
it will be idle to contend that Parliament could have intended that
D the relief so granted would not be available to the assessees who
would be liable to pay a larger amount of tax. The years for which
relief had remained in force had already passed out. It does not
appear that as a result of the relief enjoyed by the assessee, the finan-
cial position of the State for all these years, had been or could be in
any way affected. The facts and circumstances also do .not indicate
E that there will be any heavy burden on the State to sound taxes
collected which may upset the economy of the State. It appears that J
in the majority of the cases, the assessees have succeeded and they
.have been assessed after being allowed the relief and under S. 80J in
respect of the borrowed capital also.

On the other hand it is quite.clear that if the relief granted is to
be withdrawn with retrospective operation from 1972 the assessees
who have enjoyed the relief for all those years will have to face a very
grave situation. The effect of the withdrawal of the relief with retros-
pective operation will be to impose on the assessee a huge accumula-
ted financial burden for no fault of the assessee and this is bound to
create a serious financial problem for the assessee. Apart from the
G heavy financial burden which is likely to upset the economy of the
undertaking, the a;sessee will have to face other serious problems.
On the basis that the relief was legitimately and legally available to
the assessee, the assessee ha_d proceded to act and to arrange its
affairs. If the relief granted is now permitted to be withdrawn with
retrospective operation, the asscssee may be found guilty of violation
H p1o~isicrl of otbu statuto ard uay be visited with panel consequen-
LOHIA MACHINES v. UNION (A.N. Sen, J.) 781
ces. This position cannot be and is not disputed by the learned A
Attorney General who has, however, argued that taking into conside-
ration the peculiar facts and circumstances, penal provisions may not
be enforced. This argument does not impress me. The assessee has, in
any event, to run the risk and for no fault on his part has to place
itself at the mercy of the authorities for facing consequences of viola-
tion of statutory provisions. which but for the introduction of retros-
pective amendment, would not have been voilated by the assessee. B

To establish arbitrariness or unreasonableness it does not become
necessary to prove that the undertaking of the assessee will be com-
pletely crippled and will have to be closed down in consequence of
the withdrawal of the relief with restrospective effect. There cannot
be any doubt about the real possibility of very serious prejudice being
caused to the assessee for no fault of the assessce. In my opinion, the c
possibility of very grave drejudice to the assessee by the withdrawal
of the relief with retrospective effect, in the absence of any justifiable
ground and any serious prejudice to the interest of revenue, establi-
shes unreasonableness and arbitrariness of the retrospective amend-
ment is bound to have very serious effect on the assessee and there is
reasonable possibility of the business of the assessee being adversely D
affected and seriously prejudiced. The retrospective amendment,
therefore, is also violative of Art- 19 (1) (g) of the Constitution.

The argument of the Attorney General that the amendment had
to be made with retrospective effect in the interest of the assessee, as
otherwise, the assessee would not be entitled to the benefit of there- E
lief intended to be given under the section because there will be no
valid rule for computing the relief, to my mind, is clearly untenable.
I see no reason as to why there should be any difficulty in the com-
putation of relief if the invalid part of the rule is struck down. It may
be noted that the rule in so far it excludes borrowed capital and fixes
the first day of the year for computation of the relief had been struck
down by various High Courts years ago and the assessing authorities F
have found no difficulty in computing the relief and in proceeding to
complete the assessment by granting the relief legally available to
to assessee under S. 80J even after the invalid part of the rule had
been struck down. It may also be noted that the Parliament had also
G
not considered it necessary to effect this amendment earlier inspite of
the decisions of the High Courts, althongh the Parliament had intro-
duced other amendments into this section.

Before concluding I wish to emphasise that the withdrawal
with retrospective effect by amendment of any financial benefit or
H
782 SUPREME COURT REPORTS [1985] 2 S.C.R.
relief granted by a fiscal statute must ordinarily be held to be unrea-
A sonable and arbitrary. Such withdrawal makes a mockery of bene-
ficial statutory provision and leads to chaos and confusion. Such
withdrawal in effect results in the imposition of a levy at a future date
for past years for which there was no such levy in the relevant years.
The imposition of any fresh tax with retrospective effect for years for
B which there was no such levy is entitled to arrange and normally
arranges his financial affairs on the basis of the law as it exists. Such
retrospective taxation imposes an unjust and unwarranted accumula-
ted burden on the assessee for no fault on his part and the assessee
has to face unnecessarily without any just reason very serious financial
and other problems. Imposition of any tax with retrospective effect
c for years for which no such tax was there, cannot also be considered
to be just and reasonable from the point of view of revenue. The
years for which levy is sought to be imposed with retrospective effect
bed already passed and there cannot be any proper justification for
imposition of any fresh tax for those years. Such retrospective tax-
ation is likely to disturb and unsettle the settled position ; and because
D
of such imposition of retrospective levy for the years for which there
was no such levy, assessments for those years which might already
have been completed and concluded will get upset. If the State is in
need of more funds, the State instead of seeking to levy any tax with
retrospective effect can always take appropriate steps to collect any
1
larger amount so required by imposition of higher taxes or by other
E appropriate methods. I have already observed that Validating Acts
which seek to validate the levy of any tax with retrospective effect do
not in effect impose any fresh tax with retrospective effect and Vali-
dating Acts stand on an entirely different footing. T, therefore, hold
that the impugned amendment in so far as it is sought to be made
retrospective with effect from the !st day of April 1972 is invalid and
unconstitutional, though the amendment in so far as it operates pros-
F
pectively is valid.
In the result I dismiss the appeals flied by the Union of India
against the decisions of the High Courts declaring Rule 19-A to be
invalid in so far as the said rule excludes borrowed capital and fixes
the first day of the year for computation of the relief to be granted to
an assessee under S. 80J. I set aside the judgment of the Madhya
G
Pradesh High Court which upholds the validity of the Rule and I
allow the apeal of the assessee against the judgment of the Madhya ;- .
Pradesh High Court. I hold and declare that Rule 19-A is so far as
it seeks to exclude the borrowed capital and fixes the first day of the
year for the computation of relief under S. 80J is invalid and unconsti-
H tutional and the same has to be struck down and has been struck down
to!IIA MA.CHINES v. UNION (A.N. Sen. J.) . '183
by the various High Courts. I hold and declare that the impugned A
amendment of 1980 incorporating the provision of the invalid rule
19-A in the section itself, excluding the borrowed capital and fixing
the first day of the year for computation of the relief under S. 80J is
valid in its prospective operation from the date of the amendment
and is unconstitutional and invalid insofar as the said amendment is
sought to brought into operation retrospectively with effect from !st B
April 1972. Accordingly, I allow the writ petitions challenging the
validity of the amendment only to the extent of its retrospective
operation and I dismiss the writ petitions in so far as the amendment
in its entirety is sought to be challenged. I prospose to make no order
as to costs.

In view of the majority decision, all the writ petitions are
dismissed and both the parties to bear their own costs.
c

A.P.J. Petitions dismissed