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Judgment
Mankad, J.—The assessee is a private limited company and we are concerned with assessment year 1970-71, previous year being the year
ended on June 30, 1969. The original assessment in the case of the assessee was completed on February 28, 1973, on ''nil'' income.
Subsequently, in consequence of information in the possession of the Income Tax Officer, the completed assessment was reopened u/s 147(b) of
the Income Tax Act, 1961, (hereinafter referred to as ""the Act""). In the course of original assessment proceedings, the assessee had claimed
depreciation at 100% on pans, condensers, etc., under the amended Income Tax Rules which came into force with effect from April 1, 1970. In
reassessment proceedings, the Income Tax Officer did not accept the assessee''s claim for 100% deduction on the ground that depreciation at
100% was admissible only for new salt pans, etc., on replacement and not for old pans. According to the Income Tax Officer, so far as old pans,
etc., were concerned, the expenditure incurred for repairs or replacements thereof was admissible as revenue expenditure prior to April l, 1970.
The assessee, however, did not claim expenditure for repairs and replacement of salt pans, etc., as revenue expenditure in the past, but capitalised
such expenditure and claimed depreciation at 6%. The Income Tax Officer held that the written down value arrived at was in respect of the old salt
pans, etc., and the assessee was not entitled to 100% depreciation on the basis of such written down value as claimed by it in the original
assessment proceedings. In this view of the matter, the Income Tax Officer withdrew depreciation of Rs. 3,00,354, allowed to the assessee in the
original assessment proceedings. It is, however, pertinent to note that the Income Tax Officer did not allow any depreciation on salt pans, etc., to
the assessee. Being aggrieved by the order passed by the Income Tax Officer, the assessee went in appeal before the Appellate Assistant
Commissioner. The Appellate Assistant Commissioner, however, confirmed the order of the Income Tax Officer, recording his finding : ""On the
basis of discussion in Appeal No. BNR/367/76/77, the present appeal is dismissed."" No reasons were recorded by the Appellate Assistant
Commissioner in his order for confirming the view taken by the Income Tax Officer. Being aggrieved by the order passed by the Appellate
Assistant Commissioner, the assessee carried the matter in further appeal before the Income Tax Appellate Tribunal, Ahmedabad Bench
(""Tribunal"" for short). The Tribunal upheld the decision of the Income Tax officer to reopen the assessment u/s 147(b) of the Act. However, so far
as the assessee''s claim for depreciation at 100% of the written down value in respect of salt pans, etc., was concerned, the Tribunal held that the
assessee was entitled to claim 100% depreciation on the written down value of the salt pans, etc., the result, it allowed the claim of the assessee
and set aside the orders in this regard passed by the Appellate Assistant Commissioner and Income Tax Officer. The Revenue being aggrieved by
the decision of the Tribunal, the following question has been referred to us at its instance by the Tribunal u/s 256(1) of the Act :
(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 Income Tax
Officer was not justified in withdrawing 100% depreciation of Rs. 3,00,354 granted to the assessee on old salt pans, condensers, etc. in the
original assessment for the assessment year in question ?
At the instance of the assessee, the Tribunal has referred to us the following question for our opinion :
(2) Whether the Income Tax Appellate Tribunal was right in law in holding that the assessment was rightly reopened u/s 147(b) of the Act ?
We will first take up for our consideration, the first question which has been referred to us at the instance of the Revenue. It is not disputed that
in the past, the assessee had claimed depreciation at 6% in respect of salt pans, etc. It was on the basis of this undisputed position that it was urged
by Mr. S. N. Shelat, the learned counsel for the Revenue, that salt pans in respect of which the assessee was now claiming depreciation at 100%
were made of masonry, concrete, cement, asphalt or similar materials. Mr. Shelat invited our attention to Income Tax Rules, 1962 (hereinafter
referred to as ""the Rules""), as they stood at the relevant time and pointed out that the statement of rates at which depreciation is admissible is at
Appendix I to the Rules. So far as salt pans were concerned, depreciation was admissible at 6% in respect of reservoirs, condensers, salt pans,
delivery channels and piers, if constructed of masonry, concrete, cement, asphalt or similar materials under Part I of the said Appendix I. Mr.
Shelat also pointed out that the note below the entry relating to salt pans makes it clear that repairs to similar works made of earth will be allowed
as revenue expenditure. Therefore, submitted Mr. Shelat, if the salt pans, etc., in respect of which the assessee is now claiming depreciation at
100%, were made of earth and clay as urged by the assessee, it could not have claimed any depreciation in the past. It could have claimed
expenditure incurred for repairs of salt pans made of earth as revenue expenditure. It could have claimed depreciation at the rate of 6% only if salt
pans, etc., were made or constructed of masonry, concrete, cement, asphalt or similar materials. It must, therefore, be assumed or inferred that salt
pans, etc., in respect of which depreciation was claimed in the past were made of cement, concrete, etc, Mr. Shelat further pointed out that under
the amended rules, the assessee is entitled to claim depreciation in respect of reservoirs, condensers, salt pans, etc., if constructed of masonry,
concrete, cement, asphalt or similar materials at 5%. However, under the said rules the assessee was entitled to claim 100% depreciation in
respect of salt pans reservoirs, etc., made of earthy, sandy or clayey material or any other similar materials. Since the salt pans of the assessee
were not earthy, sandy or clayey material or of any other similar material, it could not have claimed 100% depreciation. Mr. Shelat submitted,
under the circumstances, the Income Tax Officer was right in withdrawing the depreciation allowed to the assessee in the original assessment
proceedings.
Now, if we turn to the order of the Income Tax Officer passed in reassessment proceedings, we find that he has refused to allow the claim of
100% depreciation made by the assessee solely on the ground that 100% depreciation was admissible only for new salt pans, etc., or replacement
and not for the old pans. He did not reject the assessee''s claim on the ground that the salt pans, etc., were made of masonry, concrete, cement,
asphalt, etc. Mr. Shelat, however, urged that when the Income Tax Officer said that depreciation at 100% was not admissible for old pans, what
he meant was that it was not admissible in respect of old pans which were made of materials like cement, concrete, etc. We find ourselves unable
to accept this submission. As observed above, it is very clear from the order of the Income Tax Officer that he refused to allow the assessee''s
claim for 100% depreciation solely on the ground that salt pans, etc., were not new. This is made further clear from the following observations
made by the Income Tax Officer in his order :
The written down value on which depreciation was claimed and computed pertains to old pans for which expenditure was admissible as revenue
expenditure prior to April 1, 1970. The assessee did not claim the expenditure as revenue expenditure in the past, but decided to capitalise the
same and claimed depreciation at 6%. The written down value arrived at is, therefore, relevant to old pans which are not entitled to 100%
depreciation for this year.
It would, therefore, appear that the Income Tax Officer accepted the assessee''s statement that salt pans, etc., were made of earth and clay and
it was, therefore, that he was of the view that before the amendment of the Rules, the assessee was entitled to claim expenditure incurred on salt
pans, etc., as revenue expenditure. The view which we are inclined to take is further strengthened by the fact that the Income Tax Officer has not
allowed any depreciation to the assessee. Had the Income Tax Officer reached the conclusion that the salt pans, etc., of the assessee were made
of materials like cement, concrete, etc., he would have allowed the depreciation at the rate of 6% under the amended Rules. He, however, did not
do so. This conclusively establishes that the Income Tax Officer had accepted the assessee''s statement that the salt pans, etc., in respect of which
depreciation at 100% was claimed were made of earth and clay. Once this conclusion is reached, it is not disputed that 100% depreciation is
admissible irrespective of the fact, whether salt pans, etc., in respect of which depreciation is claimed are new or old. The reasoning given by the
Income Tax Officer has no basis and it must, therefore, be held that withdrawal of depreciation of Rs. 3,00,354 granted to the assessee on salt
pans, etc., in the original assessment in the assessment year in question was not justified. In the result, the question referred to us at the instance of
the revenue must be answered in the affirmative and against the Revenue.
In the view which we are taking, it is not necessary to answer the question referred to us at the instance of the assessee. The assessee succeeds
on merits and, therefore, it would be academic to decide whether the Tribunal was right in holding that the assessment was rightly reopened u/s
147(b) of the Act. We, therefore, decline to answer question No. 2 referred to us at the instance of the assessee on the ground that it is academic
to do so.
Reference answered accordingly with no order as to costs.
A copy of this judgment should be sent under the seal of this court and under the signature of the Registrar to the Income Tax Appellate
Tribunal, Ahmedabad Bench.