JUDGMENT
T.D. Sugla, J.
1. The Tribunal has, at the instance of the Department referred to this court the following two questions as questions of law under section 256(1) of the Income-tax Act, 1961 :
“1. Whether, on the facts and in the circumstances of the case, depreciation was allowable to the assessee on the price paid for the acquisition of drawings, specifications and technical data as they are ‘plant’ as defined in section 43 of the Income-tax Act. 1961 ?
2. Whether, on the facts and in the circumstance of the case, the development rebate claimed by the assessee has to be computed in respect of the assessment year 1968-69 and 1969-70 and allowed to be carried forward for subsequent years, even though the necessary reserve has not been created in the relevant previous years under section 34(3) of the Income-tax Act, 1961 ?”
2. The proceedings relate to the assessment years 1968-69 and 1969-70. Counsel are agreed that, in view of this court’s judgment in the assessee’s own case in Premier Automobiles Ltd. v. CIT (1984) 150 ITR 28, the first question must be answered in the negative and in favour of the Revenue. However, the Department, it appears, has gone to the Supreme Court and the matter is pending in the Supreme Court. It is, therefore, necessary to clarify that in case this court’s judgment is reversed by the Supreme Court, the assessee will be entitled to depreciation. In the above view of the matter, while the question is answered in the negative and in favour of the Revenue, the Department is directed to allow the assessee depreciation as allowed by the Tribunal in case our court’s judgment is eventually reversed by the Supreme Court.
3. As regards the second question also counsel are agreed that though in view of the Supreme Court decision in the case of Shri Shubhlaxmi Mills Ltd. v. Addl. CIT , the question should have been answered in the negative and in favour of the Revenue, the law in this regard has since been retrospectively amended by the Finance Act, 1990. In view thereof, the second question must be answered in the affirmative and in favour of the assessee. The question is so answered.
4. No order as to costs.