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The appellant (hereinafter referred to as the assessee was carrying on the business of crushing sugar-cane and gur refining. M/s. Andrew Yule & Co. were acting as the managing agents of the assessee. In a letter dated 5th February, 1946 addressed to the share-holders of the assessee the managing agents referred, to the alarming increase of Government interference in the affairs of the sugar industry in Bihar and the increase of wages of the workers, as well as the levy of a cess of Government and deterioration in the cane crops. In view of this state of affairs, the managing agents apprehended a loss and suggested that the company's affairs should be put on a "less discouraging basis" by accepting the offer of a lease of the company as a running concern from the Standard Refinery & Distillery Ltd. At an extra-ordinary general meeting of the share-holders of the assessee company held on 5th March, 1946 it was decided to authorise the directors to enter into a lease with the said Standard Refinery & Distillery Ltd. By an indenture of 15th March, 1948 the lease was executed to come into effect retrospectively from 1st June, 1945. The term of the lease was originally for 5 years commencing from 1st June 1945 with an option to the lessee to continue for further five years and thereafter two further options to the lessee, each for five years, on the same terms and conditions, but subject to the payment of higher rates of royalties and also subject to the option on the part of the assessee company to terminate the lease by a resolution of the shareholders of the company to be held before 30th November in any year after the first two years. This option of termination of the lease was not exercised by the assessee company. The consideration of the lease as described in clause 7 of the indenture was royalty payable on the manufacture of sugar and molasses. The royalty on sugar was to be at the rate of Rs. 75 per hundred maunds of sugar manufactured for the first and second term of five years, at the rate of Rs. 82.50 per hundred maunds of sugar manufactured for the third five year period and at Rs. 90 for the fourth five year period. The royalty on molasses was to be calculated at 3 pies per maund on all molasses sold during each year of the original period or the renewed period of the lease. The computation of the royalty was subject to a minimum payment of Rs. 65,000 per annum. For the assessment year 1955-56 the relevant accounting year of the assessee ended on 31st May, 1954. In the assessment proceedings for 1955-56 the assessee's main contention was that the lease granted under the indenture of 15th March, 1948 was a lease of a commercial asset and therefore the income arising from the lease should be assessed under S. 10 of the Income Tax Act and the assessee should be allowed depreciation and development rebate in accordance with clause (vi-a) and clause (vi-b) of sub-section (2) of section 10 of the Income Tax Act. The Income Tax Officer assessed the income under S. 12 of the Act as being income under the head "other sources" and held that no additional depreciation or development rebate could be allowed as claimed by the assessee. According to the assessee, the, income derived from the lease of the sugar factory was income from business because the factory was leased as a going concern and the rent of the building, machinery, plant and spare parts was fixed at a certain rate per maund of sugar produced, and at a certain rate per maund of molasses sold. On appeal, the Appellate Assistant Commissioner found that it was a simple lease of the building and machinery in a sugar factory, and as such the method of payment based on production could not affect the character and nature of the income derived under the said lease. In further appeal the Appellate Tribunal came to the conclusion that on the facts stated the case fell under section 12 and not under section 10 and that since sub-section (3) of section 12 did not include clauses (vi-a) and (vi-b) of section 10(2) the claim of additional depreciation and development rebate could not be allowed. At the instance of the assessee the Appellate Tribunal stated a case to the High Court on the following questions of law under section 66(1) of the Income Tax Act, 1922 (hereinafter referred to as the Act) :

"(1) Whether on the facts and in the circumstances of the case, the income of the assessee company was liable to be assessed under section 12 of the Indian Income Tax Act and not under section 10 of the said Act ? (2)Whether on the facts and in the circumstances of the case, additional depreciation and development rebate can be allowed as a deduction ?"

The High Court answered both the, questions against the assessee holding that the income was liable to be assessed under section 12 and that no additional depreciation and development rebate could be allowed.

(2) 26 I.T.R. 765.

Weaving Mills' case(1) for there is no out-right sale of the building of the factory but only a lease of the factory premises together with the machinery for a long period of years.

For the reasons already expressed our conclusion is that the intention of the assessee was not to treat the factory etc. as a commercial asset during the subsistence of the lease. In other words, the intention of the assessee was to go out of the business altogether so far as the factory and the machinery was concerned with effect from 1st June, 1945 and the intention was to use the income arising from the royalty in its capacity as the owner of the factory. it follows therefore that the first question was rightly answered by the High Court in favour of the Commissioner of Income Tax. As regards the second question the argument was stressed by Mr. Choudhury that clauses (vi-a) and (vi-b) of section 10(2) are ancillary to clause (vi) and should be taken to be included within clause. (vi) as mentioned in sub-section (3) of section 12. It appears that clause (vi-a) was inserted by section 11 of the Taxation Laws (Extension to Merged States and Amendment Act, 1949). Clause (vi-b) was inserted by s. 8 of the Finance Act, 1955 with effect from 1st April, 1955. At the time of making the amendment under the said Acts, no amendment was made to section 12(3) of the Act. It was argued by Mr. Choudhury that although this was not done specifically it followed by implication that additional depreciation allowance in respect of new assets and development rebate would cornsern within the ambit of section 12(3). It appears to us that clauses (vi-a) and (vi-b) are not ancillary to clause (vi) because the scheme of clauses (vi-a) and (vi-b) is somewhat different. Clause (vi-a) which was inserted in 1949 gives additional depreciation allowance over and above the initial allowance which was formerly available under 'the second paragraph of clause (vi) in respect of buildings newly erected and new machinery and plant but not furniture installed after the 31st March, 1948. The additional allowance under this clause is confined to not more than five successive assessments falling within the period from 1st April 1949 and 31st March 1959. Further it is deductible in deter- mining the written down value, unlike the initial allowance granted under the second paragraph of clause (vi). Clause (vi-b) was inserted by the Finance Act, 1955. It grants development rebate in respect of machinery and plant provided that the machinery or plant is new and has been installed after the 31st March, 1954; and provided further that it is used wholly for the purpose of the assessee's business and the particulars prescribed for the purpose of clause (vi) have been furnished. It is manifest that clauses (vi-a) and (vi-b) introduce a new scheme (1)26 I.T.R. 765.

and cannot be treated as an integral part of clause (vi) by implication. Apart from this consideration it appears to us that these clauses were not specifically engrafted by Parliament in section 12(3) and section 12(4) while amending section 10(2) of the Act. It is therefore not permissible for the Court to read these same clauses by implication in section 12(3) and section 12(4) of the Act. The duty of the Court is to interpret the words that Parliament has used, it cannot supply the gap disclosed in an Act or to make up the deficiencies. "If", said Lord Brougham, in Gwynne v. Burnell,(1) "we depart from the plain and obvious meaning on account of such views (as those pressed in argument on 43. Geo. 3, c. 99) we do not in truth construe the Act, but alter it. We add words to it or vary the words in which its provisions are couched. We supply a defect which the legislature could easily have supplied, and are making the law, not interpreting it" (Cf. Kumar Kamalaranian Roy v. Secretary of State(2). Accordingly, we are of opinion that the assessee is not entitled to additional depreciation and development rebate and the second question was rightly answered by the High Court in the negative. For these reasons we hold that the judgment of the High Court dated 20th September, 1963 is correct and this appeal must be dismissed with costs.