R. JAYASIMHA BABU, J.

The appeal is admitted and is also being disposed of finally by this order as counsel for the Revenue who was present took notice and she has also been heard.

The question raised concerns proper construction of section 88(2)(xv)(b) of the Income-tax Act, 1961. The assessment year is 1994-95. It is useful to set out section 88(2)(xv) of thebefore we consider the question.

"88. Rebate on life insurance premia, contribution to provident fund, etc. - ...

(2) The sums referred to in sub-section (1) shall be any sums paid or deposited in the previous year by the assessee out of his income chargeable to tax - ...

(xv) for the purposes of purchase or construction of a residential house property the income from which is chargeable to tax under the head Income from house property (or which would, if it had not been used for the assessees own residence, have been chargeable to tax under that head), where such payments are made towards or by way of -

(a) any instalment or part payment of the amount due under any self-financing or other scheme of any development authority, housing board or other authority engaged in the construction and sale of house property on ownership basis; or

(b) any instalment or part payment of the amount due to any company or co-operative society of which the assessee is a shareholder or member towards the cost of the house property allotted to him; or

(c) repayment of the amount borrowed by the assessee from -

(1) the Central Government or any State Government, or

(2) any bank, including a co-operative bank, or

(3) the Life Insurance Corporation, or

(4) the National Housing Bank, or

(5) any public company formed and registered in India with the main object of carrying on the business of providing long-term finance for construction or purchase of houses in India for residential purposes which is approved for the purposes of clause (viii) of sub-section (1) of section 36, or(6) any company in which the public are substantially interested or any co-operative society, where such company or co-operative society is engaged in the business of financing the construction of houses, or

(7) the assessees employer where such employer is a public company or a public sector company or a university established by law or a college affiliated to such university or a local authority or a co-operative society;"

The words used in sub-clause (b) of clause (xv) are company, co-operative society, shareholder and member. Unless the person claiming the benefit is a shareholder of a company to which he has made the payment of instalment or part payment of the amount due to such company, or is a member of the co-operative society to which he has made similar payment towards cost of house property allotted to him, he cannot claim the benefit of this sub-clause (b).

Counsel for the appellant, however, contended before us that though the assessee had made payments to one Ankur Housing Investments Ltd., which was a company of which the assessee is not a shareholder/member, nevertheless, the payment made to that company towards the cost of the house to be built by that company for the assessee was an amount in respect of which benefit under section 88(2)(xv)(b) could be claimed. Counsel submitted that the object of the provision is to encourage thrift, and relied on the decision of the apex court in the case of Chandulal Harjiwandas v. CIT. Learned counsel also submitted that sub-clause (c) of section 88(2)(xv) provides for deduction of repayments made to other organisations of which an assessee need not be a member and, therefore, insistence of membership in case of companies and co-operative societies to which part payment is made is not reasonable. It is the case of the assessee that sub-clauses (b) and (c) should be read together and the reference to the member and shareholder in clause (b) be practically disregarded for granting benefit to the assessee.The argument is wholly untenable. The plain words used in the section clearly require that to claim the benefit under section 88(2)(xv)(b) , the person must be a member of the company or a shareholder/member of the co-operative society to which the instalment or part payment is made. There is a clear distinction between sub-clauses (b) and (c). Sub-clause (b) refers to the payments made by an assessee for the purchase or construction of a residential house to a company of which he is a shareholder or, to the co-operative society of which he is a member, and which society has allotted the house to him. Sub-clause (c), on the other hand, refers to repayment of the amount borrowed from the Central and State Governments, banks, Life Insurance Corporation of India, National Housing Bank and public companies formed and registered in India with the object of carrying on business in providing long-term finance for the construction or purchase of houses in India and for other essential purposes. The legislative intendment is that the amounts repaid to the institutions referred to in clause (c) will be eligible for rebate.

Sub-clause (c) deals with repayment of amounts borrowed from institutions referred to therein while sub-clauses (a) and (b) do not deal with repayments but with payments made by the assessee to the institutions named therein, towards the value of the house property allotted by them to the assessee. Where such instalments are payable to a company or co-operative society, the assessee should be a shareholder or member of the society.

We do not find any error in the order made by the Tribunal. The appeal is, accordingly, dismissed.

Learned counsel sought to challenge the constitutional validity of the provision. Such a plea cannot be entertained as in proceedings under the statute, the validity of the statute cannot be questioned.