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TMI Blog1982 (9) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... ome for the purpose of s. 11(2) of the IT Act, 1961 in asst. yr. 1975-76 when the cost of the assets was fully allowed in the year in which the assets were required by the assessee-trust?" "2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in arriving at a decision for allowance of depreciation of assets in asst. yr. 1975-76 which was contrary to its decision in the case of the same assessee in asst. yrs. 1974-75 and 1976-77 where there is no change in the facts or the legal provisions?" 2. In as much as, in our opinion, neither of the two proposed questions is a referable question of law, we decline to refer any of them for the reasons stated in the following paragraphs. 3. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated earlier, the AAC followed the aforesaid decision of the Tribunal, and allowed the appeal of the assessee. 5. The Department appealed to the Tribunal, and contended that the decision of the AAC was erroneous. It was contended that the AAC should not have allowed any notional deduction towards depreciation from the actual funds available with the Trust. On the other hand, reliance was placed on behalf of the assessee on the aforesaid order dt. 17th Sept., 1977 of the Tribunal in ITA No. 2440/Bom/76-77 and other appeals. In this case, the Tribunal has held that it was not only prudent but was essential for the purpose of arriving at `income' available for application towards the object of the Trust to deduct depreciation in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Tribunal in the case of L.C. Trust has become final, and so the said case lays down the settled law, on the subject. 8. On the other hand, the ld. Rep. for the department, placed before us a copy of the order, dt. 18th Jan., 1982 in R.A. No. 707/Bom/81 in the case of the Marathi Mission wherein a similar question has been referred under s. 256(1) of the IT Act, 1961. He urged that the question proposed in the application now before us should therefore, be referred. 9. We have considered the contentions of both the parties, as well as the facts on record. The question before the Tribunal was as to whether adequate depreciation should be provided for before arriving at the real income in the commercial sense. Thus, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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