R.M. MEHTA, A.M.: This appeal is directed against order of CIT(A) where by he has directed ITO to allow deduction under ss. 33B of and 80J of IT Act, 1961. following grounds have been urged by Revenue: (1) ld. CIT(A) has erred in law and on facts in directing ITO to allow deduction under s. 33B of Rs. 2,11,266 by estimating 60 per cent of WDV of assets. (2) ld. CIT(A) further erred in law and on facts in directing ITO to grant relief under s. 80J. (3) On facts of case of CIT(A) ought to have upheld order of ITO. (4) It is, therefore, prayed that order of CIT(A) may be set aside and that of ITO be restored to above extent. first ground pertains to deduction allowed by CIT(A) under s. 33B of Act. ITO in course of assessment proceedings observed that assess had claimed sum of Rs. 2,69,230 by way of rehabilitation allowance under s. 33B. He made detailed enquiries from assessee in support of its claim. After doing so he concluded that assessee was not entitled to deduction inasmuch as various conditions envisaged by section were not satisfied. detailed reasoning of ITO in rejecting claim is recorded as under: "The assessee has claimed rehabilitation allowance under s. 33B to tune of Rs. 22,69,230. detailed calculation how figure has been arrived at is given in statement filed alongwith return of income. It is argued by Shri J.J. Rayani that on account of flood, assessee's factory was damaged and hence assessee s case falls under provisions of s. 33B of IT Act. (i) As regards method of computation of allowance, it is explained by Shri J.J. Rayyani that some of assets of factory were totally destroyed and washed away in flood. Accordingly, these assets were written off and terminal loss under s. 32(1)(Iii) to tune of Rs. 62,300 is claimed. Thus assessee has claimed investment allowance at rate of 60 per cent of terminal loss of Rs. 62,300 and 60 per cent of value of remaining assets of Rs. 4,83,022. (ii) I have gone through contentions put forth by assessee's ITP orally as well as in writing and due consideration have been given. As laid down under s. 33B where business of any industrial undertaking i s discontinued in any previous year by reason of extensive damage or destruction of any building, machinery, plant or furniture owned by assessee and for purpose of such business as direct result of flood then rehabilitation allowance is to be allowed as per terms and conditions laid down under s. 33B of IT Act. In case of assessee company, business was never discontinued. As stated by assessee Commissioner. itself, business was temporarily suspended. Accordingly, first condition that 'business should be discontinued' is not satisfied by assessee company. second condition for this allowance is that there should be extensive damages or destruction of building, machinery and plant of assessee company. In this case, there were no extensive damages or destruction caused to assessee's assets, because out of total assets, assessee has written off assets having value of Rs. 1,22,232 as on 30th June, 1979 and claim of terminal allowance of Rs. 62,300. Thus, this is not case that extensive damage or destruction was caused to assessee's assets. Now coming to method of calculation of allowance under this section as laid down in section, rehabilitation allowance equivalent to 60 per cent of amount of deduction is allowable to him under cl. (Iii) of sub-s. (I) of s. 32 in respect of building, machinery, plant of furniture so damaged or destroyed is to be taken as base. In this case, as mentioned above, assessee has claimed investment allowance on two count partly 60 per cent of terminal loss claim and mainly 60 per cent of remaining assets which have not been written off. To be more precise, value of fixed assets as on 1st July, 1979 were filed at Rs. 5,45,321 out of which assessee has written off assets worth Rs. 62,300 leaving behind its value of remaining assets at Rs. 4,83,022. assessee has claimed written down value @ 60 per cent of Rs. 4,83,021and 60 per cent of Rs.62,300. As laid down in section, rehabilitation allowance is to be allowed on 60 per cent of amount deductible under s. 32(1)(iii). Thus, assessee has not also followed method of calculation of rehabilitation allowance as laid down under this section. As stated above, assessee does not fulfil any of conditions as laid down under section, hence assessee's claim of rehabilitation allowance under s. 33B is negatived". CIT(A) however accepted various contentions of assessee and allowed claim under s. 33B. In doing so he observed as under: "The next ground is with regard to claim of assessee made under s. 33B. ITO has stated in his assessment order that conditions as laid down as per provision of s. 33B of Act are not satisfied in case of assessee. Therefore, he has rejected claim of assessee company. l d . counsel, on other hand, has urged that ITO has again failed to aggregate facts of present case inasmuch as extensive damage to building and machinery has been caused because of floods which took place in Morvi in month of August, 1979 and assessee is entitled to deduction under s. 33B as also it is entitled to claim under s. 80J. ld. counsel has also relied upon comparable case of M/s Super Scientific Clock Mfg. Commissioner, for asst yr. 1980-81. assessee, in that case, made claim under s. 33B on account of extensive damages done to machinery; claim was about Rs. 24,00,000. Thus ITO after considering facts of that case he has allowed 60 per cent of Rs. 18,00,000 against claim made by assessee at 60 per cent of Rs. 24,00,000. ld. counsel has also stated that ITO, Morvi, in case of M/s. Jaibharat Tiles Commissioner., Morvi for asst. yr. 1981-82, has allowed rehabilitation allowance. ld. counsel has also cited decision of CIT(A), Rajkot in case of M/s Scientific Clock Mfg. Commissioner. for asst. yr. 1980-81. On that basis, it is urged by ld. counsel that assessee is entitled to deduction under s. 33B. It is contended that business was not discontinued but it was temporarily suspended. Reliance has been placed on CED vs. R. Kanakasabai & Ors. 1973 CTR (SC) 227: (1973) 89 ITR 251 (SC) and Nand Kishore Jhajharia vs. ITO (1973) 89 ITR 229 (Cal). ld. counsel has also explained meaning of word "Discontinued". In this respect, he had relied upon Supreme Court decision in case of CIT vs. Sripur Paper Mills Ltd. 1978 CTR (SC) 11: (1978) 112 ITR 776 (SC). On basis of same it is urged that extensive damage is separate and distinct from other loss or destruction and thus, it is urged that ITO may be directed to allow same. I have considered these submissions very carefully and on perusal of comparable case that ITO himself has allowed in case of M/s Scientific Clock Mfg. Commissioner. of Morvi claim made and as factory of assessee company is situated in Morvi, facts of present case and that of comparable case of M/s Scientific Clock Mfg. Co. are more or less same because floods which took place in Morvi in month of August, 1979 has affected assessee as well as other assessee of Mosrvi who are carrying on business activities at Morvi. ITO in that case for asst. yr. 1980-81, has considered and allowed huge amount of allowance under s. 33B. ITO has worked out claim of assessee in that case @ 60 per cent per cent of 18 lakhs, i.e. more than 10 lakhs of rupees as Rehabilitation Allowance under s. 33B. CIT(A), Rajkot has also allowed such Rehabilitation Allowance under s. 33B in case of M/s Super Scientific Clock Mfg. Commissioner., Morvi. C I T (A), Rajkot in appeal No. CIT/R/229-84-85, in case of M/s. Super Scientific Clock mfg. Commissioner., Morvi for asst. yr. 1981-82, in his order dt. 16th Aug., 1984 has allowed claim under s. 33B. Since facts of assessee company are similar to that obtained in case of M/s Super Scientific Clock Mfg. Commissioner. of Morvi, I hereby direct ITO to allow claim of deduction under s. 33B. However, assessee company has made claim at Rs.269.230. assessee has worked out written down value at Rs.4,83,021 and deductions available @ 80 per cent of same has been taken and claimed. However, this estimate is on high side. In my opinion 60 per cent of such written down value would be reasonable amount instead of estimate made by assessee at 80 per cent. Therefore, working for arriving at figure of allowable Rehabilitation Allowance under s. 33B is as under: (I) Written down value (after excluding assets written off) Rs. 4,83,021 (ii) 60 per cent of same Rs. 2,89,812 (iii) 60 per cent of this amount eligible for claim as Rehabilitation Allowance under s. 32(1)(iii) Rs. 1,73,886 (iv) (a) terminal allowance of value of assets written off eligible under s. 32(1)(iii) Rs. 62,300. (b) 60 per cent of this amount s Rs. 37,380 Rs. 37,380 Total amount eligible for deduction under s. 33B Rs. 2,11,266 As against above working, assessee company has claimed same at Rs. 2,69,230. ITO is directed to allow deduction under s. 33B at Rs.2,11,266". ld. Departmental representative in course of his arguments kly supported order of ITO. According to him claim had been rightly rejected by ITO since assessee did not satisfy various conditions laid down under s. 33B. It was contended that business had not been "discontinued" but only temporarily suspended. He also referred to Circular issued by CBDT pertaining to s. 33B wherein they had indicated conditions which had to be complied with before claim could be allowed. He also referred to Memo explaining provisions in Finance (No. 2) Bill, 1967 under which s. 33B was inserted. According to him, combined reading of provisions fo section as also Memo and CBDT Circular clearly indicated that assessee was not entitled for deduction as relevant conditions were not satisfied. main contention of ld. departmental representative was that assessee was not entitled to claim but it was alternatively submitted that in case it was held that assessee was entitled then, CIT(A)'s order was not correct in so far as computation was concerned. It urged that claim had to be quantified at 60 per cent of amount of deduction allowable under cl. (Iii) of sub-s. (1) of s. 32 which in this case happened to be sum of Rs. 62,300. According to him, 60 per cent of this came to Rs. 37,380 only. It was submitted that as against this CIT(A) had allowed deduction of Rs. 2,11,266 by taking into consideration all assets which had not even been written off. It was also submitted that provisions of section were absolutely clear and they had to be construed in strict manner. According to him, it was immaterial if any hardship was caused to particular assessee by interpreting taxing statute in such strict manner. According to him, it was well stetted proposition that where language of section was plain and unambiguous it was not open to Courts to read into its limitations which were not there. It was further submitted that intention had to be gathered from words actually used in legislation and what was unexpressed had same value s to what was unintended. For this proposition he relied on following decisions: (I) Swadeshi Polytex Ltd. vs. ITO (1981) 221 CTR (All) 554: (1981) 127 ITR 287 at 295 (All) (ii) CED vs. Amarlal, LR to Estate of Late Smt. Chandra Bai (1984) 38 CTR (Mad) 60: (1984) 147 ITR 243 (Mad) (iii) Vidarbha Co-op. Marketing Society Ltd. vs. CIT (1983) 36 CTR (Bom) 400: (1985) 156 ITR 422 (Bom). It was accordingly urged that order of ITO be restored. ld. counsel for assessee, on other hand, kly supported order of CIT(A). According to him, floods in August, 1979 had resulted in extensive damage to factory premises as well as machinery. According to him, assessee could not resume its business for period of 6 to 7 months and same remained discontinued. He also supported order of CIT(A) in respect of deduction which had been allowed in respect of assets other than those on which deduction had been allowed under s. 32(1)(iii). In support of his arguments he referred extensively to paper book filed by him running into 76 pages. Reliance was also placed by him on following decisions: (I) CIT vs. Engineering Works of India (P) Ltd. (1977) 10 ITR 11 (Cal) (ii) CGT vs. T.S. Krishna (1984) 149 ITR 99 at 102 (Mad) (iii) CIT vs. Sirpur Paper Mills Ltd. 1978 CTR (SC) 11: (1978) 112 ITR 776 (SC). It was urged that Rehabilitation allowance being concession provisions of section should be liberally construed. He accordingly urged that order of CIT(A) be confirmed. In reply ld, departmental representative made impassioned plea i n support of his alternative contention to effect that in respect of assets which had not been destroyed, no deduction under s. 33B could be allowed. According to him, depreciation had already been allowed on these assets in earlier years as also year under appeal and further deduction under s. 33B would mean double deduction. According to him, s. 33B would apply only to assets which had been completely damaged and not capable of any use. We have examined rival contentions and have also perused paper book filed by assessee. Before we proceed further we would like to set out provisions of s. 33B which was inserted w.e.f. 1st April, 1967: "33B. Where business of any industrial undertaking carried on in India i s discontinued in any previous year by reason of extensive damage to, or destruction of, any building, machinery, plant or furniture owned by assessee and used for purposes of such business as direct result of (i) flood, typhoon, hurricane, cyclone, earthquake or other convulsion of nature; or (ii) riot or civil disturbance; or (iii) accidental fire or explosion; or (iv) action by enemy or action take in combating enemy (whether with or without declaration of war), and, therefore, at any time before expiry of three years from end of such previous year, business is reestablished, reconstructed or revised by assessee, he shall, in respect of previous year in which business is so re-established, reconstructed or revised, be allowed deduction of sum by way of rehabilitation allowance equivalent to sixty per cent of amount of deduction allowable to him under cl. (Iii) of sub-s. (1) of s. 32 in respect of building, machinery, plant or furniture so damaged or destroyed: Provided that no deduction under this section shall be allowed in relation to assessment year commencing on 1st April, 1985, or any subsequent assessment year. Explanation: In this, section, "industrial undertaking' means any undertaking which is mainly engaged in business of generation or distribution of electricity or any other form of power or in construction of ships or in manufacture or processing of goods or in mining". aforesaid section was introduced with view to providing some sort of relief to assessees who had suffered extensive damage to building, machinery plant etc. as result of natural calamities. Admittedly, during year under consideration there were floods in Morvi where industrial undertaking of assessee is located. It is obvious that there was dislocation in working as result of floods and also that damage was caused to factory building as well as other fixed assets. We have however to examine whether there was "discontinuance of business" within meaning of s. 33B, as also fact "whether extensive" damages had been caused as result of floods which took place in Morvi on 11th Aug., 1979. perusal of assessment order shows that assessee claimed sum o f Rs. 4,04,623 under head "Flood Rehabilitation Account'. Out of this, Rs. 2,14,063 pertains to building and Rs. 1,89,660 related to machinery. ITO while examining this claim of assessee observed as under: "It is admitted fact that assessee's buildings were damaged on account of flood and they were completely destroyed. By spending this huge amount, factory building, office building and Major quarters have been newly constructed. By spending this amount, assessee will definitely derive enduring nature of benefit. Accordingly, I hold that Rs. 2,14,963 spent after renovation or reconstruction of building situated in factory premises are of capital nature and hence same is disallowed. However, depreciation on same will be allowed at usual rate. As regards expenses of Rs. 1,89,660 spent for machinery assessee has not furnished detailed copy of account. Accordingly, it is not possible to verify as to what type of expenses have been incurred after repairs of machinery. However, principle applied in building account will also be applicable in machinery account i.e. by spending such huge amount of Rs. 1,89,660 after repairs of machinery assessee company. will derive enduring benefit. Hence this amount of expenditure is also treated as capital expenditure". (Emphasis italicized in print supplied) It is apparent that extensive damage was caused to fixed assets of fixed assets of assessee resulting in such huge expenditure to bring them back to their original condition. It is another thing whether such expenditure is to be considered on revenue account or capital account. We even have on record certificate dt. 20th Sept., 1979 issued by Commissioner of Industries, Gujarat Government wherein one of relevant clauses reads as under: "Certified that damage suffered by M/s Klin Products (Morvi) Pvt. Ltd., Morvi during flood of 11th Aug., 1979 has been assessed at Rs. 12,71,700 (Rupees Twelve Lac Seventy one thousand seven hundred only) by office of Industries Commissioner, Ahmedabad". It is quite clear that even Gujarat Govt. has assessed damage arising as result of flood at figure of Rs. 12,71,700. second aspect to be considered is whether business has been "discontinued" as result of such extensive damage. assessee's previous year is from 1st July, 1979 to 30th June, 1980. floods took place on 11th Aug., 1979 when previous year had progressed only for period of six weeks. ld. counsel for assessee has stated that business was recommenced after period of 7 to 8 months which would mean somewhere in March, 1980. In other words, working operations have been only for period of five months out of 12 months. According to us, word "discontinued" would also mean complete stoppage for some time which may not necessarily be very long. There is no doubt that provisions of section allow assessee to restart operations within period of three years from end of previous year. This however does not mean that there is any bar to recommence earlier than that. perusal of P&L Account placed on paper book further shows that sale of assessee have come down to figure of Rs. 33.39 lacs as against figure or Rs. 53.52 lacs in immediately preceding year. In other words entire operations of assessee were affected by floods. We are accordingly of view that assessee is entitled to deduction under s. 33B in respect of Rehabilitation allowance since according to us various conditions laid down by section are duly satisfied. We however do not uphold order of CIT(A) in respect of quantum which is to be allowed as deduction. CIT(A) has not only allowed 60 per cent of amount of terminal allowance but he has also directed that 60 per cent of value of other assets would also qualify. According to us provisions of section are absolutely clear and we once again reproduce relevant portion" "..........be allowed deduction of sum by way of rehabilitation allowance equivalent to sixty per cent of amount of deduction allowable to him under clause (iii) of sub-s. (1) of s. 32 in respect of building, machinery, plant or furniture so damaged or destroyed". According to us, there is no scope for any doubt as to how quantum is to be worked out. It may be mentioned that in respect of other assets which had been affected by floods, assessee has already claimed sum of Rs. 4,004,623 under head "flood Rehabilitation Account" (as already discussed). In case deduction under s. 33B is once again allowed then it would mean double deduction. We would accordingly uphold order of CIT(A) only to extent of allowing claim under s. 33B in respect of amount claimed as terminal allowance under s. 332(1)(Iii). balance amount directed to be allowed by CIT(A) is treated as withdrawn. second ground in appeal pertains to relief granted to assessee under s. 80J. ITO while rejecting claim observed as follows: "The assessee company has also claimed deduction under s. 80J of Rs. 68,900, as per working given along with return of income. During course o f assessment proceedings, assessee was directed to give explanation on what ground they are claiming deduction under s. 80J when business itself has not been started or commenced during previous year relevant to asst. yr. 1981-82. In this connection, assessee Co. ITP s Shri Rayani has drawn my attention to proviso of s. 80J(4). As laid down in this proviso, it is mentioned that condition in cl. (i) shall not apply in respect of any industrial undertaking which is formed as result of re-construction or revival by assessee of business of any such industrial undertaking as referred to in s. 33B and within period specified in that section. As discussed above, assessee Co.'s claim of deduction under s. 33B is negatived as conditions laid down in this section have not been fulfilled by assessee Commissioner. Accordingly, when assessee's case does not fall under purview of s. 33B of IT Act, they are not entitled to benefit of proviso to s. 80J(4). In view of above, assessee company's claim under s. 80J is also negatived". CIT(A) however accepted claim of assessee and in doing so observed as follows: "The next ground point is with regard to claim made under s. 80J. claim under s. 80J is consequential to allowance allowable under s. 33B. As it has been held that assessee is entitled to deduction under s. 33B, as per Expln. to s. 80J(4) assessee is entitled to claim under s. 80J. claim in this respect has been made at Rs. 68,900. assessee has worked out written down value of assets and current value of liabilities etc. ITO is hereby directed to verify correctness of working given by assessee company for claim made under s. 80J. As stated above, assessee is entitled to deduction under s. 80J in view of fact that deduction under s. 33B is eligible and allowable to assessee company. ITO is directed to verify correct working and allow same under s. 80J". ld. DR supported order of ITO whereas ld. Counsel for assessee supported order of CIT(A). We have examined rival contentions and are of view that claim under s. 80J has not been considered in its proper perspective either by ITO or by CIT(A). Both of them have considered claim as consequential to claim of assessee under s. 33B. ITO being of view that since assessee did not do any business during year, it was not entitled to deduction. For this finding he relied on view which he had taken in rejecting claim under s. 33B. In this connection he referred to proviso to s. 80J(4). CIT(A) on other hand, upheld claim for deduction only on ground that since claim under s. 33B was to be allowed deduction under s. 80J followed consequently. We are of view that since assessee's claim under s. 33B has been accepted by us with modifications we would restore issue pertaining to claim under s. 80J back to file of ITO. We do so since there is no finding in his order or discussion on merits. We do not know as to whether similar claim was made by assessee in earlier years and, if so, what was fate. ITO is directed to process claim departmental representative novo after satisfying himself as to whether assessee is entitled or not. For this purpose he will afford reasonable opportunity of being heard to assessee. As result appeal is partly allowed. *** INCOME TAX OFFICER v. KLIN PRODUCTS (MORVI) P. LTD.