Judgment 1. The Income-tax Appellate Tribunal, B Bench, Patna, has referred the following question of law for the decision of this court under Sec. 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"): "Whether, on the facts and in the circumstances of the case, the assessee was entitled to Rs. 98,434 under Sec. 32(1)(iii) of the Act ?" 2. The brief facts are the following : The assessment year in question is 1972-73. The assessee in its return claimed a loss of Rs. 98,434 as allowable under Sec. 32(1)(iii) of the Act, though no such loss was claimed in the profit and loss account. That was explained before the Income-tax Officer saying that the assessee took a building for the purpose of its business on a leasehold land and the terms of the lease came to an end on March 31, 1972. It appears from the lease deed that the assessee took only the site and by spending a huge amount, put up a small structure. According to the lease deed, on the expiry of the term of the lease, the land along with any structure thereon was to revert back to the lessor without any compensation. Accordingly, the assessee surrendered the leasehold land along with the building standing thereon on March 31, 1972, to the lessor. There was no dispute on these facts. 3. However, the question for consideration is whether, on the surrender of the site along with the building to the lessor, the assessee is entitled to invoke the benefit of Sec. 32(1)(iii) of the Act. 4. Learned counsel appearing for the assessee submitted before the Income-tax Officer that surrender of the building can be equated either with discarding of the building or demolition of the building and, therefore, it is entitled to the benefit as contemplated under Sec. 32(1)(iii) of the Act. This claim was rejected by the Income-tax Officer, confirmed by the Appellate Assistant Commissioner on appeal and further confirmed by the Tribunal on further appeal. The same argument has been placed before us by learned counsel for the assessee. 5. This claim was rejected by the Income-tax Officer, confirmed by the Appellate Assistant Commissioner on appeal and further confirmed by the Tribunal on further appeal. The same argument has been placed before us by learned counsel for the assessee. 5. Learned counsel appearing for the Revenue, while supporting the order of the Tribunal and the reasons given therefor, also called in aid Sec. 52(1A) of the Act to contend that in view of the language employed in Sec. 32(1A) of the Act, the benefit under Sec. 32(1)(iii) of the Act cannot be given. He also submitted that Sec. 32(1)(iii) cannot be invoked in view of the facts and circumstances of the case. He further submitted that the conditions of Sec. 32(1)(iii), subject to which the benefit can be availed of, had not been satisfied by the assessee. On that ground also, according to learned counsel, the assessee is not entitled to Sec. 32(1)(iii) of the Act. 6. In reply, learned counsel for the assessee submitted that mention of Section 52(1A) of the Act is not relevant on the facts of this case. He also submitted that the contention that the proviso to Sec. 32(1)(iii) of the Act had not been satisfied need not be taken serious note of as that proviso was only directory in nature and not mandatory. 7. We have considered the rival submissions. 8. Sec. 32(1)(iii) of the Act, as it stood at the relevant period, reads as follows : "In respect of depreciation of buildings, machinery, plant or furniture owned by the assessee and used for the purposes of the business or profession, the following deductions shall, subject to the provisions of Sec. 34, be allowed-- .... (iii) in the case of any building, machinery, plant or furniture which is sold, discarded, demolished or destroyed in the previous year (other than the previous year in which it is first brought into use), the amount by which the moneys payable in respect of such building, machinery, plant or furniture, together with the amount of scrap value, if any, fall short of the written down value thereof : Provided that such deficiency is actually written off in the books of the assessee." 9 This clause was deleted with effect from April 1, 1988. Sec. 32(1A) of the Act which was also subsequently omitted with effect from April 1, 1988, reads as follows : "Where the business or profession is carried on in a building not owned by the assessee but in respect of which the assessee holds a lease or other right of occupancy and any capital expenditure is incurred by the assessee for the purposes of the business or profession after the 31st day of March, 1970, on the construction of any structure or doing of any work in or in relation to, and by way of renovation or extension of, or improvement to, the building, then, in respect of depreciation of such structure or work, the following deductions shall, subject to the provisions of Sec. 34, be allowed- (i) such percentage on the written down value of the structure or work as may in any case or class of cases be prescribed ; (ii) in the case of any such structure or work which is sold, discarded, demolished, destroyed or is surrendered as a result of the determination of the lease or other right of occupancy in respect of the building in the previous year (other than the previous year in which it is constructed or done) the amount by which the moneys payable in respect of such structure or work together with the amount of scrap value, if any, fall short of the written down value thereof : Provided that such deficiency is actually written off in the books of the assessee." 10. Let us first deal with the contention of learned counsel for the Revenue by mentioning Sec. 32(1A) of the Act. We do not think that, on the facts of this case, Sec. 32(1A) has any relevance as the expenses incurred in this case were long prior to March 31, 1970. 11. We have seen earlier that the assessee has surrendered the building built on the site which was taken over on lease in terms of the lease deed on March 31, 1972. Such surrender of lease cannot by any stretch of imagination be equated to discarding of the building or demolition of the building as contemplated under Sec. 32(1)(iii) of the Act. Therefore, the Tribunal was right in holding that the assessee is not entitled to avail of the benefit of Sec. 32(1)(iii) of the Act. Such surrender of lease cannot by any stretch of imagination be equated to discarding of the building or demolition of the building as contemplated under Sec. 32(1)(iii) of the Act. Therefore, the Tribunal was right in holding that the assessee is not entitled to avail of the benefit of Sec. 32(1)(iii) of the Act. Assuming for the sake of argument that Sec. 32(1)(iii) of the Act can be invoked on the facts of this case, even then, the assessee will not be entitled to the benefit of Sec. 32(1)(iii) of the Act inasmuch as admittedly it has not satisfied the condition imposed by the proviso to that section, namely, that the deficiency has not been actually written off in the books of the assessee. We are unable to appreciate the argument of learned counsel for the assessee that the proviso has to be construed as directory in nature and not mandatory and, therefore, non-compliance with the condition imposed under the proviso will not stand in the way of the assessee availing of the benefit of Sec. 32(1)(iii) of the Act. There is no such thing as directory or mandatory while construing the proviso to a section. If the assessee is interested in availing of the concession/benefit provided under the provisions of the Act, the conditions subject to which such concession/benefit can be availed of have to be complied with. Admittedly, in this case, the assessee has not satisfied the condition. On that ground also, the assessee is not entitled to avail of the benefit of Sec. 32(1)(iii) of the Act. 12. In the above circumstances, we answer the question against the assessee and in the negative. 13. This reference is disposed of accordingly. 14. Let a copy of this judgment be forwarded to the Income-tax Appellate Tribunal, "B" Bench, Patna, under the seal of the court and the signature of the Registrar.