9911796707
TMI Blog2001 (7) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by the Tribunal for the opinion of this court: "1. Whether, on the facts and circumstances of the case, the Income tax Appellate Tribunal was right in law in having interpreted the orders passed by the Income-tax Officer for the assessment years 1980-81 and 1981-82 to mean that the depreciation had actually been worked out and separately allowed by the Income-tax Officer for these two years on truck No. HRN 345? 2. Whether, on the facts and circumstances of the case, the Income tax Appellate Tribunal was right in law in holding that the Income-tax Officer had correctly worked out the profit under section 41(2) on the sale of truck No. HRN 345?" The relevant facts as disclosed in the statement of the case in respect of one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence has to be answered on the basis of the facts as found by the Tribunal. "Depreciation" in its ordinary sense means "loss of value". In case of commercial vehicles, the loss usually occurs on account of wear and tear during use. Thus, the Legislature has made provision allowing the benefit of depreciation to the assessee "on the written down value at the prescribed rate". Specific provision in this behalf has been made in section 32 of the Act. It is implicit in the provision that the assessee has to disclose the value of the vehicle and can claim depreciation at the prescribed rate. However, the provision as its exists till today does not provide that depreciation shall be deemed to have been claimed and granted even when the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as at the end of the pre ceding year as no depreciation would actually be allowed in the assessment year." A perusal of the above shows that the depreciation allowance has to be separately worked out". The assessee has to furnish the "required particulars". In a case where the assessee does not furnish the particulars arid makes "no claim for depreciation in the return", the Income-tax Officer is expected to "estimate the income without allowing depreciation allowance". The circular is based on a simple principle, namely: "Depreciation is a benefit. It can be allowed only when claimed. it cannot be 'thrust' upon the assessee." The circular and the legal position was clearly noticed by a Bench of this court in Beco Engineering Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal income". It is no doubt true that the Explanation appears to have been added "for the removal of doubts". However, the fact remains that prior to the insertion of the Explanation, there was no express provision by which depreciation could be fictionally deemed to have been claimed and granted. What is the position in the present case? In the statement of case, reference has been made to the order of the Income-tax Officer. A copy has been produced as annexure A. At pages 11-12 of; he paper book, the following position has been noticed: "The assessee has purchased a Truck No. 345 in the assessment year 1978-79 at Rs.62,000. During the assessment year 1978-79, the assessee has claimed depreciation and allowed at 30 per cent. But in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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