Judgment ( 1. ) THIS is a reference under section 256 (1) of the income-tax Act, 1981 (for brevity the Act) by the Income-tax Appellate tribunal, Jabalpur (for short the Tribunal) whereby the Tribunal has proposed the following question for opinion of this Court: "whether on the facts and in the circumstances of the case the Tribunal was justified in holding that 100% depreciation is allowable under section 32 (1) (ii) of the Income-tax Act, 1961, on the gas cylinder as cost of each cylinder is below Rs. 5000/- even though the cylinders were used far less than 180 days?" ( 2. ) THE facts which are requisite to be adumbrated for the purpose of answering the reference are that the assessee-company carries on a business for production and sale of industrial gases. As is evincible, it purchased empty gas cylinders and it is filled with industrial gas and sold in the market. For the assessment year 1994-1995 the assessee claimed total deduction amounting to rs. 15,32,092. 20 on the ground that it is entitled to complete exemption under section 32 (1) (ii) of the Act read with the first proviso of the said provision. The assessing Officer (AO) negatived the aforesaid stand on the ground that no individual cylinder can be treated as one plant or machinery and it cannot be used separately and the assets having been used for less than 180 days 50% depreciation would be allowable. Be it noted, the AO dealt with many other facets but we are only concerned with this aspect. ( 3. ) BEING aggrieved by the order passed by the Assessing Officer the assessee-petitioner preferred an appeal before the CIT (Appeals) Jabalpur. The appellate Authority expressed the opinion that the assessee is entitled only for normal depreciation and for the period in which the assets were purchased. It was observed by him that the business of the assessee is just like cooking gas system while cylinders are being given to the consumers on demand on the cost and where the cylinder is empty it is exchanged with the filled up cylinder. The CIT (Appeals) further opined that the cylinder has the status of cooking gas plant and there was no proponement that the cylinders were used for the purpose of manufacturing process or any conversion process of gas. The CIT (Appeals) further opined that the cylinder has the status of cooking gas plant and there was no proponement that the cylinders were used for the purpose of manufacturing process or any conversion process of gas. Being of this view the cit (Appeals) rejected the stand put forth by the assessee. ( 4. ) ON an appeal being preferred before the Tribunal it took note of the fact that the cost of each cylinder purchased by the assessee was below Rs. 5000/-and came to hold that there was no dispute with regard to use of cylinders during the year under consideration for the purpose of business; that the first proviso to section 32 (1) gets attracted to the case at hand; that the third proviso to the aforesaid provision which restricts the deduction in respect of assets falling within a block asset income of its users for less than 180 days has no application to the assets which do not form a part of the block; that plant or machinery with the actual cost of Rs. 5000/- or less is not covered by the concept of block assets and, therefore, they are out of the province of the third proviso; that by the finance Act, 1995 the first proviso to section 32 (1) (ii) was deleted and thereafter the Central Board of Direct Tax (CBDT) circular/memorandum was issued clarifying the basic feature for block assessment and how the all the items of plant and machinery including costing less than Rs. 5000/- will form a part of block assessment and it allowed depreciation at the specified rate in accordance with Rule 5 of the Income-tax Rules; that the Assessing Officer himself had accepted that the assessee is the user of cylinders and that in the obtaining factual matrix the assessee was entitled to 100% depreciation of gas cylinders. ( 5. ) AFTER the order was passed by the Tribunal the Revenue filed an application under section 256 (2) of the Act and the Tribunal keeping in view the assertions made has sent the aforesaid reference for the opinion of this Court. ( 6. ) WE have heard Mr. Sanjay Lal, learned counsel for the Revenue and Mr. A. P. Shrivastava, learned counsel with Mr. Sapan Usrethe for the assessee. ( 7. ( 6. ) WE have heard Mr. Sanjay Lal, learned counsel for the Revenue and Mr. A. P. Shrivastava, learned counsel with Mr. Sapan Usrethe for the assessee. ( 7. ) THE question that falls for consideration is whether the gas cylinder used by the assessee is to be treated as plant and machinery and whether the use of less than 180 days of a cylinder would only entitle the assessee to get 50% depreciation. Section 43 (3) of the Act defines the term plant. It reads as under : "43. Definitions of certain terms relevant to income from profits and gains of business or profession. (1) xx xx xx (2) xx xx xx (3) "plant" includes ships, vehicles, books, scientific apparatus and surgical equipment used for the purposes of the business or profession;" ( 8. ) UNDER Rule 5 of the Income-tax Rules, 1962 gas cylinders including valves and regulators were treated as plants under the table of rates on which depreciation is admissible. Rate of depreciation as mentioned in table is 100%. Submission of Mr. Sanjay Lal, learned counsel for the Revenue is that the said table was effected from the Assessment Year 1984-1985 to the Assessment Year 1987-1988. It is unnecessary to emphasise, we are concerned with the assessment Year 1994-1995. The said table was substituted with effect from 2-4-1987 making it applicable for the assessment year 1988-1989 to 2002-2003. In the said table the gas cylinders including valves and regulators have been treated as plants and 100% depreciation is admissible. Thus, the Assessment Year with which we are concerned, is covered by the same. ( 9. ) AT this juncture, it is submitted by Mr. Sanjay Lal that the gas cylinders may be covered if 180 days use is proved. Section 32 as it stood at the relevant point of time under sub-section (1) provided depreciation in respect of buildings, machinery, plant or furniture owned by the assessee and used for the purposes of the business or profession. The said provision postulated that what would be the deduction read in conjunction with section 34. In the present case, it is quite clear that section 34 is not attracted. Sub-section (l) (ii) of section 32 provided that in case of any block of assets what would be the percentage of written down value thereof. The first proviso reads as under : "32. In the present case, it is quite clear that section 34 is not attracted. Sub-section (l) (ii) of section 32 provided that in case of any block of assets what would be the percentage of written down value thereof. The first proviso reads as under : "32. Depreciation (1) xx xx (i) xx xx (ii) Provided that where the actual cost of any machinery or plant does not exceed (five thousand) rupees, the actual cost thereof shall be allowed as a deduction in respect of the previous year in which such machinery or plant is first put to use by the assessee for the purposes of his business or profession. " ( 10. ) BE it placed on record, the Tribunal has placed reliance on the first proviso. The learned counsel for the assessee has also placed heavy reliance on the same. Per contra, Mr. Sanjay Lal, learned counsel for the Revenue has submitted that the third proviso would be applicable to the case at hand. The third proviso reads as under : "provided also that where any asset falling within a block of assets is acquired by the assessee during the previous year and is put to use for the purposes of business or profession for a period of less than one hundred and eighty days in that previous year, the deduction under this clause in respect of such asset shall be restricted to fifty per cent of the amount calculated at the percentage prescribed under this clause in case of block of assets comprising such asset. " ( 11. ) THE Tribunal as is perceptible has expressed the opinion that the assets did not form a part of block assets before deletion of the first proviso and, therefore, for the Assessment Year 1994-1995 the first proviso would be applicable. The learned counsel has also submitted that the memorandum was issued by the CBDT to highlight how the Revenue had understood the provision. He has also commended us to the decision rendered in Commissioner of Income-tax vs. Dhall Enterprises and Engineers (P) Ltd. , (2006) 201 CTR (Guj) 107 : (2006) 150 Taxman 499 wherein a Division Bench of the High Court of Gujarat while dealing with the same referred to the legislative history and development of section 32 and eventually came to hold as under : "10. Thus, it is apparent that the legislative intent in introducing the first proviso was to ensure that a taxpayer is not put to hassle of detailed calculation and accounting of depreciation allowance in respect of machinery or plant having small cost. As against that, the legislative intent in introducing the third proviso was to obviate the practice adopted by the taxpayers to claim full depreciation on an asset even if the asset is acquired towards the end of the year and used for only one day during the previous year resulting in excessive allowance of depreciation in the year in which the asset is first put to use, thereby depleting the taxable profits of that year an amount which bears no relationship to the use of that asset for earning that income. 11. The scheme, therefore, that unfolds is that in cases of assets whose value does not exceed the prescribed monetary ceiling, neither the taxpayer nor the assessing authority must be called upon to undertake an elaborate exercise to compute the depreciation allowance by entering into detailed calculation followed by accounting entries from year to year. Therefore, to project the third proviso as overriding the first proviso is not warranted by the scheme of the act or the legislative intent. 12. It is settled position in law that proviso is normally used as a legislative took to carve out an exception from the main provision which precedes the proviso. The first proviso makes it clear that in case of the machinery or plant whose actual cost does not exceed the specific monetary ceiling, such asset would not enter the block of assets and hence, there would be no occasion to work out such percentage of the written down value/actual cost. If the view canvassed by the Revenue is accepted, this would go against the legislative intent. 13. There is one more reason. The third provisoitself requires to restrict the depreciation allowance at 50 per cent of the amount calculated at the percentage prescribed under cl. (ii) of sub-section (1) of section 32 of the act. As already noticed, the asset does not enter the block of assets and hence, there is no question of working out the prescribed percentage. Therefore, on this count also the third proviso cannot be invoked and applied because it does not talk of restricting the value at 50 per cent of the actual cost. As already noticed, the asset does not enter the block of assets and hence, there is no question of working out the prescribed percentage. Therefore, on this count also the third proviso cannot be invoked and applied because it does not talk of restricting the value at 50 per cent of the actual cost. " ( 12. ) REGARD being had to the circular of the CBDT and the decision of the gujarat High Court with which we concur, we are of the considered opinion that the order of the Tribunal is absolutely flawless and accordingly, we answer the reference in the affirmative against the Revenue and in favour of the assessee. Order accordingly.