R. K. ABICHANDANI, JJ. ( 1 ) THE Income Tax Appellate Tribunal has referred to the High court, the following questions for its opinion under Section 256 (1)_ of the Income tax Act, 1961; (1) "whether, on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was right in law in holding that the assessee was entitled to depreciation on the cost of road treating them as plant?" (2) "whether on the facts and in the circumstances of the case, the Income Tax appellate Tribunal was right in law in deleting the amount of Rs. 19,275/- on the ground that no part of the said expenditure was disallowable as entertainment expenditure u/s. 37 (2b) of the Income Tax Act, 1961?" (3) "whether, on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was justified in law in directing the Income Tax officer to recompute the capital employed without deducting the debt and liabilities and redetermine the deduction admissible to the assessee under the provisions of Sec. 80j and rule 19a of the Income Tax Rules?" (4) "whether, on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was right in law in holding that except for the amount of Rs. 3798/- the balance of the expenses of Rs. 21,467/- were not hit by provisions of Section 37 (4) of the Income Tax Act and consequently were allowable u/s. 37 (1) of the Act?" (5) "whether, on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was right in law in applying the tests laid down by the decision of the Gujarat High Court in the case of Paid Bros. 106 I. T. R. 424 in granting deduction of the impugned expenditure of Rs. 21,467/- ?" (6) "whether, on the facts and in the circumstances of the case, the Tribunal erred in law in holding that expenditure to the extent of Rs. 3798/- was hit by Sec. 37 (4) as being expenditure in the nature of maintenance of guest house ?" (7) "whether, on the facts and in the circumstances of the case the Tribunal erred in law in holding that profit liable to be taxed under Sec. 41 (2) in respect of road milk tanker was Rs. 67. 869a instead of Rs. 67. 869a instead of Rs. 32,367/- ?" (8) "whether, on the facts and in the circumstances of the case the Tribunal erred in law in holding that the assessee is not entitled to the deduction of rs. 7,35,637/- being the expenditure incurred on advertisements and publicity for High Protein Food in computing its income ?" ( 2 ) SO for as questions Nos. 1 to 6 are concerned, we do not find it necessary to set out the facts involved in the reference since they are covered by binding decisions. Question No. 1 is covered by the decision of this Court in the assessees case for the assessment year 1966-67 reported in 162 ITR 496. Following the said decision, we answer the question No. 1 in the affirmative and against Ihe Revenue holding that the assessee was entitled to depreciation on the cost of road treating it as building. So for as questions Nos. 2, 4 and 5 are concerned, they are covered by the decision of this court in CJ. T. vs. Patel Brothers and Co. , reported in 106 ITR 424. Following the said decision, we answer these questions Nos. 2,4 and 5 in the affirmative and against the revenue. As regards question No. 3, since it is directly covered by the decision of the supreme Court in Lohia Machines Ltd. vs. Union of India, reported in 152 ITR 308, it is answered in the negative and against the assessee. So for as question No. 8 is concerned, the learned counsel for the assessee, at whose instance the question was referred, states that the assessee does not press the reference as regards that question. The Tribunals view on this question, therefore, stands. So for as question No. 6 is concerned, as regards the expenditure in the nature of naintenance of guest house, it is covered by the decision of this Court in the case of the assessee reported in 192 ITR 608. Following that decision, we answer the question in the affirmative in favour of the assessee in respect of the repairing charges. So far as the expenditure incurred on the curtain charges is concerned, the learned counsel for the assessce submits that the assessee does not press for any deduction on that count. Following that decision, we answer the question in the affirmative in favour of the assessee in respect of the repairing charges. So far as the expenditure incurred on the curtain charges is concerned, the learned counsel for the assessce submits that the assessee does not press for any deduction on that count. ( 3 ) QUESTION No. 7 relates to the computation of profit under Section 41 (2) of the said Act in respect of the sale of road milk tanker. The assessce had purchased the road milk tanker for Rs. 1,53,687/- and a portion of the cost amounting to Rs. 67,869/- was met out of the grant received by the assessee. Thus the actual cost of the tanker was determined at Rs. 85,818/- and the assessee was allowed a total depreciation of rs. 73,514/- on the basis of the actual cost of Rs. 85,818/- home by the assessee. Thus the written down value of the tanker was Rs. 12,304/- when it came to be sold for Rs. 80. 000/ -. The assessees case was that the sale proceeds of Rs. 80,000/- should be allocated in the ratio of Rs. 67,869/- to Rs. 85,818/- for the purposes of determining the profit under Section 41 (2) of the Act. According to the assessee, therefore, on the basis of proportionate sale proceeds which worked out to Rs. 44,671/- in context of the actual cost, the profit under Section 41 (2) of the Act should be determined at Rs. 32,367/- and not Rs. 67,869/- , the basis being that to the extent of grant which reduced the actual cost, the profit under Section 41 (2) should be proportionately reduced. The Tribunal negatived these contentions and held that profit liable to be taxed under Section 41 (2) of the Act in respect of road milk tanker was Rs. 67,869/ -. This conclusion has been assailed before us on behalf of the assessee. The learned counsel appearing for the assessee has contended that plain construction of Section 41 (2) would lead to absurdity since the Revenue takes away that part of consideration of the entire asset which was attributable to the subsidy portion on which in fact no depreciation was allowed. He submitted that the entire asset had depreciated and not just a part of it for which the actual cost was borne by the assessee. He submitted that the entire asset had depreciated and not just a part of it for which the actual cost was borne by the assessee. The sale price received was for the entire asset and not merely of the portion attributable to the actual cost borne by the assessee and therefore there should be a proportionate apportionment of the consideration received towards the two parts and that what falls towards the subsidy portion cannot be taxed as income. He further submitted that the court should therefore construe the said provision of Section 41 (2) in a manner that wouldavoid such a result which the Legislature, according to him, could never have intended. The learned counsel appearing for the Revenue, on the other hand, contended that there was absolutely no ambiguity in the provisions of Section 41 (2) and having regard to the legislative intent of providing a balancing charge, the amount in question could be taxed as income. ( 4 ) THE provision of Section 41 (2) of the Act, as it was applicable during the relevant assessment year, 1971-72, reads as follows:" (2) Where any building, machinery, plant or furniture which is owned by the assessee and which was or has been used for the purposes of business or profession is sold, discarded, demolished or destroyed and the moneys payable in respect of such building, machinery, plant or furniture, as the case may be, together with the amount of scrap value, if any, exceed the written down value, so much of the excess as does not exceed the difference between the actual cost and the written down value shall be chargeable to income-tax as income of the business or profession of the previous year in which the moneys payable for the building, machinery, plant or furniture became due. " ( 5 ) FOR the applicability of this provision, the building, machinery, plant etc. , should be owned by the assessee and it should have been used for the purposes of business and then be sold etc. In Such a contingency, the method of identifying the amount, which could be chargeable to income tax, is indicated in this provision. " ( 5 ) FOR the applicability of this provision, the building, machinery, plant etc. , should be owned by the assessee and it should have been used for the purposes of business and then be sold etc. In Such a contingency, the method of identifying the amount, which could be chargeable to income tax, is indicated in this provision. When the moneys payable in respect of the asset sold exceed its written down value, then so much of the excess as does not exceed the difference between the actual cost and the written down value is to be charged to income-tax. The difference between the actual cost and the written down value would be the depreciation allowed. In the context of provisions of Section 41 (2), the definition of words "actual cost" contained in Section 43 (1) assumes significance. The actual cost as artificially defined in the said provision for the purposes of Sections 28 to 41 means the "actual cost" of the assets to the asscssce, reduced by that portion of the cost therefore, if any, as has been met directly or indirectly by any other person or authority. It, therefore, becomes clear that even for the purposes of computing depreciation allowance under Section 32, only the actual cost as defined under Sec. 43 (1) which was borne by the assessee was to be taken into account. The excess as does not exceed the difference between the actual cost and the written down value as, envisaged in Section 41 (2) is required to be worked out keeping in view the- said definition of actual cost which would exclude the portion of the cost met directly or indirectly by any other person or authority. Thus, there is no scope on a plain reading of this provision, for apportioning the excess of sale proceeds that may remain after deducting the written down value towards the protion of cost which might have been borne by any other person or authority. Such excess is required, insofar as it does not exceed the depreciation allowed on the actual cost of the asset, to be treated as income chargeable to tax. In the instant case, the milk tanker was sold for an amount of Rs. 80. 000/ -. The depreciation which was allowed on the milk tanker was admittedly Rs. 73,514/ -. From the sale price of Rs. 80,000/-, the sum of Rs. In the instant case, the milk tanker was sold for an amount of Rs. 80. 000/ -. The depreciation which was allowed on the milk tanker was admittedly Rs. 73,514/ -. From the sale price of Rs. 80,000/-, the sum of Rs. 12,304/-, being admittedly the written down value, was required to be deducted to work out the moneys payable in respect of the said asset which exceeded the written down value. The amount of Rs. 67. 869/- so reached did not exceed the difference between the actual cost and the written down value, that is, the depreciation allowed being the sum of Rs. 73. 514/-, and therefore the amount of Rs. 67,869/- was required to be charged to income- tax under the said provision. This is the obvious result from the plain reading of the provision of Section 41 (2 ). The fact that this would be the result on a plain construction of the said provision, was not disputed even by the learned counsel appearing for the assessee. He has however tried to impress upon us that this would be an absurd result and that by this process a capital subsidy was getting taxed as deemed income which the Legislature could never have intended. If we take note of the purpose underlying the said provision, the fallacy of this contention becomes at once obvious. The purpose underlying Section 41 (2) is to levy a balancing charge on the excess of money payable over the written down value to the extent of the total depreciation allowances granted in the past. The Revenue takes away what it had given by way of depreciation allowance in the earlier years so that the assessee may not recoup an amount in excess of the actual cost. If the idea was to tax the capital asset by treating it as deemed income as was contended by the learned counsel for the assessee, then there was no point in confining the imposition of tax under Section 41 (2) only to the extent to which the depreciation was allowed and full realisation including the portion exceeding the depreciation allowed would have been subject to income-tax. Linking the income-tax chargeable to the depreciation amount alone is a clear indication that only the benefit derived by the assessee by way of depreciation allowance was being taken back. Linking the income-tax chargeable to the depreciation amount alone is a clear indication that only the benefit derived by the assessee by way of depreciation allowance was being taken back. If the money payable, that is the sale price had equalled or exceeded that total cost of the asset inclusive of the cost attributable to the subsidy or grant portion, then too only that much of the excess over the written down value will be subject to tax as it did not exceed the depreciation allowed, being the difference between the actual cost and the written down value. Obviously, therefore, in such a case, there was no question of taxing the excess which may cover even the subsidy portion and the excess which exceeds the depreciation amount was not required to be treated as income. The interpretation of the provision of Section 41 (2) cannot vary with a price which the goods may fetch. It is significant to note in this context that, the definition of actual cost under Section 43 (1) does not extend to section 45 of the said Act and therefore the concept of cost of acquisition of asset underlying Sections 45 and 48 cannot be imposed in Sec. 41 (2 ). In our view, the definition of actual cost in Sec. 43 (1) is to be read in Sec. 41 (2) and not for the purpose of Section 45 or 48 in context of computation of capital gains and therefore there is no scope for demonstrating any absurdity resulting by a plain grammatical construction of Sec. 41 (2) by comparing the method of taxing the income by way of balancing charge under Sec. 41 (2) with the mettod of computing capital gains tax. It is by a deeming fiction that the excess of moneys payable in respect of the plant over the written down value to the extent it does not exceed the difference between the actual cost and the written down value has been made chargeable to income-tax. When the intention of the Legislature of taking back the benefit which the assessee cannot retain, is clear and the language also indicates that intention alone, it cannot be said that the provision leads to any absurdity not intended by the Legislature. The result of the plain literal interpretation is obviously intended by the Legislature, in our view. When the intention of the Legislature of taking back the benefit which the assessee cannot retain, is clear and the language also indicates that intention alone, it cannot be said that the provision leads to any absurdity not intended by the Legislature. The result of the plain literal interpretation is obviously intended by the Legislature, in our view. ( 6 ) THE learned counsel for the assessee drew our attention to the principles of statutory construction laid down in K. P. Varghese vs. 1. T. 0. Ernakulam and Anr,, 131 itr 597; C. I. T. , Bangalore vs. J. H. Gotta, 156 ITR 323; C. I. T. ( Central), Calcutta vs. B. N. Bhattachargee and Anr. , 118 ITR 461; and C. I. T, Central, Calcutta vs. National taj Traders, 121 ITR 535, which indicate that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the Legislature, the Court may modify the language so as to ensure that the Legislature intent is fulfilled. The judicial process does not stand helpless with folded hands but engineers its way to discern meaning when a new construction with a view to rationalisation is needed. However, casus omissions cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself. Keeping in view the well recognised cannons of construction, we are satisfied that the plain reading of Section 41 (2) shows that the Legislature by making this provision intended to recover the depreciation which may turn out to have been wrongly allowed since if the depreciation were not allowed then that amount would have swelled the profit to that extent. Making of such a balancing charge to take back the benefit which ought not to be retained by the assessee cannot be said to be an absurd result. There is no formula available in the Act to reduce the sale price by the subsidy as has been suggested by the learned counsel for the assessee. The language of Section 41 (2) is unambiguous when it speaks about sale of the asset and the moneys payable in respect thereof exceeding the written down value. The written down value has been ascertained as rs. 12. 304/ -. The language of Section 41 (2) is unambiguous when it speaks about sale of the asset and the moneys payable in respect thereof exceeding the written down value. The written down value has been ascertained as rs. 12. 304/ -. The moneys payable in respect of the asset that is the milk tanker, is the sale price. It is not possible to mutilate the sale price and take away the subsidy portion. The concept of subsidy got exhausted when the actual cost was taken into account as per the formula prescribed in Section 43 (1) of the Act defining actual cost. ( 7 ) RELIANCE was placed on the decision of the Allahabad High Court in Badri prasadjagan Prasad vs. C. I. T. , U. P. , 87 ITR 678 on behalf of the assessee. It will be noticed that in that case as no depreciation was allowed at all after the purchase of the truck in previous year, the High Court held that the second proviso to Section 10 (2) (vii) could not be invoked. The present case is not a case where no depreciation allowance was allowed and therefore this decision cannot help the assessee. The learned counsel for the assessee then relied upon the decision of this Court in C. I. T. , gujarat vs. Ashwin M. Patel, 144 ITR 566 in which it was held that where the assessee had acquired property, by inheritance or will or by partition, the original or actual cost of acquisition of the property would be the real value thereof to the assessee, namely, the market value on the date of its acquisition for the purposes of depreciation. It was noticed that under Section 48 of the Act cost of acquisition of the capital asset had to be deducted from the value of the consideration for the purpose of working out capital gains. It was noticed that under Section 48 of the Act cost of acquisition of the capital asset had to be deducted from the value of the consideration for the purpose of working out capital gains. It was, therefore, held that as in the case of depreciation for the purpose of working out capital gains, what is important is to find out what is the cost of acquisition and for the purpose of working out capital gains on the transfer of a capital asset which the assessee himself has not purchased, the correct method of finding out the cost of acquisition of the capital asset to the assessee is to ascertain the real value of the capital asset to the assessee at the time he acquired it. The real value of the capital asset to the assessee is the market value as on the date of acquisition. As noticed above, the definition of words "actual cost" given under Section 43 (1) of the act is confined only to the provisions of Sections 28 to 41 of the Act and has not been extended to Section 45 or 48 of the Act. The said decision has, therefore, no application to the facts of the present case, as we are not concerned with the question of computation of any capital gains. The context being entirely different, the assessee cannot press in service this decision. ( 8 ) RELIANCE by the learned counsel on the decision of the Supreme Court in C. I. T. , madras vs. Express Newspapers Ltd. , 53 ITR 250, is also misplaced. The Supreme court, while construing the provisions of Section 10 (2) (vii) of the Act of 1922, held that in order that the excess over the written down value up to the original cost to the assessee realised on the sale of machinery used in its business might be brought to tax as profits of the business under the second provison to Section 10 (2) (vii) of that Act, it was necessary that the machinery should have been sold when the business was being carried on. As the machinery was in that case sold after the business of the assessee was closed and during the winding up proceedings, it was held that the second proviso to Section 10 (2) (vii) did not apply. As the machinery was in that case sold after the business of the assessee was closed and during the winding up proceedings, it was held that the second proviso to Section 10 (2) (vii) did not apply. While construing the provisions of Section 10 (2) (vii) which refer to the original cost (in contradistinction with the provisions of section 41 (2) which refers to the actual cost defined in Section 43 (1) of the Act), the supreme Court took note of the fact that, under the proviso to Section 10 (2) (vii) of the act of 1922, if the sale price exceeds the written down value, but does not exceed the original cost price, the difference between the original cost and the written down value shall be deemed to be profits of the year previous to that in which the sale takes place; that is to say, the difference between the price fetched at the sale and the written down value is deemed to be the escaped profits for which the assessee is made liable to tax. The Supreme Court then made the following pertinent observations, which in our view, fortify the view that we are taking :"as the sale price is higher than the written down value the difference represents the excess depreciation mistakenly granted to the assessee. To illustrate: assume that the original cost of a machinery or plant is Rs. 100 and depreciation allowed is Rs. 25; the written down value is Rs. 75. If the machinery is sold for Rs. 100, it is obvious that depreciation of Rs. 25 was wrongly allowed. If it had not been allowed that amount would have swelled the profits to that extent. When it is found that it was wrongly allowed that profit is brought to charge. The second proviso, therefore, in substance, brings to charge an escaped profit or gain of the business carried on by the assessee". ( 9 ) THE Supreme Court clearly recognised the underlying idea behind the provisions of Section 10 (2) (vii) viz. , when it was found that the depreciation was wrongly allowed, the profit was to be brought to charge. Even the decision in C. I. T. , bombay City vs. Bipinchandra Maganlal and Co. Ltd. , 41 ITR 290, on which reliance was placed on behalf of the assessee, hardly supports the assessee. , when it was found that the depreciation was wrongly allowed, the profit was to be brought to charge. Even the decision in C. I. T. , bombay City vs. Bipinchandra Maganlal and Co. Ltd. , 41 ITR 290, on which reliance was placed on behalf of the assessee, hardly supports the assessee. In context of the provisions of Section 10 (2) (vii), it was held there in by the Supreme Court that the difference between the written down value of an asset and the price realized by the sale thereof, was not really income, but it was made taxable income for the purposes of computation of assessable income by the fiction in the second proviso to Section 10 (2) (vii) read with Section 2 (6c) of the Act of 1922. The Supreme Court, in terms, observed that it was the accumulated depreciation over a number of years which was regarded as income of the year in which the asset was sold. The difference between the written down value of an asset and the price realized by the sale thereof though no profit earned in the conduct of the business of the assesse was notionally regarded as profit in the year in which the asset is sold, for the purpose of taking back what had been allowed in the earlier years. These observations, in fact, fortify the view that we are taking on construction of the provisions of Section 41 (2) of the Act. ( 10 ) IN view of the aforesaid discussion, we are of the opinion that the Tribunal has taken a correct view of the matter and has not committed any error in holding that the profit liable to be taxed under Section 41 (2) of the Act in respect of the road milk tanker was Rs. 67,869/- and not Rs. 32,367/- as suggested by the assessee. Question no. 7 is, therefore, answered in the negative and against the assessee and in favour of the Revenue. The Reference stands disposed of accordingly with no order as to costs. .