Jagannatha Shetty, J.
1. The following question has been referred under s. 256(1) of the I.T. Act by the Income-tax Appellate Tribunal Bangalore Bench :
'Whether, on the facts and in the circumstances of the case, the assessee was entitled to development rebate on safe deposit lockers ?'
2. The facts behind the legal formulation are these :
The assessee is a nationalised bank. For the assessment years 1971-72 and 1972-73, the ITO allowed development rebate of Rs. 30,643 and Rs. 61,596 respectively on 'safe deposit locker cabinets'. But the Addl. CIT. in proceedings taken under s. 263 of the I.T. Act, held that although the said cabinets should be regarded as 'plant', the assessee was not entitled to 'development rebate' in view of the prohibition contained under s. 33(6) of the Act. The Commissioner, in other words, was of the opinion that the cabinets were installed in the office premises and therefore the assessee was not entitled to 'development rebate' in respect thereof.
3. Being aggrieved by the order of the Commissioner, the assessee appealed to the Income-tax Appellate Tribunal. Before the Tribunal the first contention urged on behalf of the assessee was that the 'office premises' envisaged under s. 33(6) of the Act should be confined to the place where administrative work is carried on, and not the premises were business and office activities are inseparably carried on. It was next contended that the meaning of 'office premises' at least should be confined to the portion of the premises where administrative work is carried on as against the business premises in general. The Tribunal did not accept both the contentions. The Tribunal was of the opinion that s. 33(6) of the Act is a total bar if plant and machinery are installed in the office premises of the assessee and that the office premises should not be narrowly understood and confined only to the portion where administration is carried on.
4. Let us now analyse the relevant provisions. Section 33(1)(a) provides :
'33(1)(a) - In respect of a new ship or new machinery or plant (other than office appliances or road transport vehicles) which is owned by the assessee and is wholly used for the purposes of the business carried only him, there shall, in accordance with and subject to the provisions of this section and of section 34, be allowed a deduction, in respect of the previous year in which the ship was acquired or the machinery or plant was installed or, if the ship, machinery or plant is first put to use in the immediately succeeding previous year, then, in respect of that previous year, a sum by way of development rebate as specified in clause (b)'
5. Section 33(6) provides :
'33(6) Notwithstanding anything contained in the foregoing provisions of this section, no deduction by way of development rebate shall be allowed in respect of any machinery or plant installed after the March 31, 1965, in any office premises or any residential accommodation, including any accommodation in the nature of a guest house :
Provided that the provisions of this sub-section shall not apply in the case of an assessee being an Indian company, in respect of any machinery or plant installed by it in premises used by it as a hotel, where the hotel is for the time being approved in this behalf by the Central Government.'
6. In the instant case, there is no dispute that safe deposit locker cabinet is a plant and, it if is used for the purpose of the business, the assesse should be entitled to development rebate. But s. 33(6) of the Act provides that if such plant is installed in any office premises or in the residential accommodation of the assessee, it is not entitled to development rebate.
7. Sri Kumar, learned counsel for the assessee, submitted that banking business and banking administration cannot be bifurcated and both are simultaneously carried on in the same premises and, therefore, development rebate cannot be denied in respect of the plant installed in such premises. He next submitted that, in any event, safe deposit lockers are located at a segregated place where no administrative work is done and it is completely independent of and isolated from the office premises and the assessee, therefore, would be entitled to the rebate under s. 33(1)(a) of the Act.
8. So far as the first contention is concerned, we do not think that we could accept it. It may be that banking business is carried on in the same place where banking administration is also carried on. But s. 33(6) of the Act clearly provides that where plant and machinery are installed in the office premises, the, notwithstanding anything contained in s. 33(1)(a) of the Act, no deduction by way of development rebate shall be allowed. So long as it is not in dispute that the assessee is carrying on the administrative work also in the premises where banking business is carried on, no development rebate could be allowed.
9. But, we do find considerable force in the second contention urged by Sri Kumar. The learned counsel has placed before us some guidelines issued by the National Institute of Bank Management in regard to the manner in which safe deposit lockers are to be installed. They are in these terms : The safe deposit lockers are installed in a fire proof steel cabinet; the said room has got a main door and a grill door. Both doors are made up of steel. In banking terms such special rooms are called strong rooms. All and sundry are not allowed access to the strong room. Daily register of attendance is also maintained wherein the hirer has to affix his signature after entering the relevant particulars before entering the strong room. Only authorised persons are allowed entry inside the strong room.
10. These instructions give us an indication that safe deposit lockers are located in an isolated strong room where no administrative work is carried on and all and sundry are not allowed access to that place. If that is so, the assessee cannot be denied the development rebate. Section 33(6) cannot be a bar to grant that relief. The assessee appears to have faintly pleased before the Tribunal that that portion of the premises where there is installation of safe deposit lockers should be considered not as office premises, but as business premises. The Tribunal has rejected that contention perhaps on the ground that there is no clear demarcation between the office premises and the business premises. In our view, there was no material before the Tribunal to reach that conclusion. The assessee also did not produce any acceptable evidence to lend support to that contention.
11. In the circumstances, answering the question ON THE vague material would result in injustice and, therefore, we think it appropriate to decline to answer the question on the ground that the Tribunal has failed to consider and decide the question laid down by us. The Tribunal may now rehear the case and dispose of the same in accordance with law and in the light of the observations made after affording opportunity to the parties for adducing evidence, if they so desire.
12. The case is accordingly disposed of.