JUDGMENT
G.T. Nanavati, J.
1. At the instance of the Revenue, the Tribunal has referred the following question to this court under section 256(1) of the Income-tax Act, 1961 :
“Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in holding that the assessee is entitled to 100 per cent. depreciation in respect of earthen work of kyaras, pans, reservoirs and road and other units, irrespective of the fact that such assets were built prior to the accounting year relevant to the assessment year in question ?”
2. The assessee-company is engaged in the business of manufacturing salt and selling the same. In its return for the assessment year 1970-71, the assessee claimed 100 per cent. depreciation in respect of earthen work, salt pans, reservoirs and roads. The Income-tax Officer disallowed the same on the ground that the said assets were not brought into use during the year of account. The appeal filed by the assessee against the said order was allowed and the Tribunal has confirmed the view taken by the Appellate Assistant Commissioner. The Revenue, therefore, moved the Tribunal to refer the above quoted question to this court.
3. A similar point arose for consideration by this court in CIT v. Bhavnagar Salt and Industries Works P. Ltd. [1987] 163 ITR 265. In that case also, the Income-tax Officer had refused to allow the assessee’s claim for 100 per cent. depreciation solely on the ground that salt pans, etc., were not new. This course held that the said view of the Income-tax Officer was not correct. This court further held that if salt pans, etc., in respect of which depreciation at 100 per cent. is claimed were made of earth and clay, then 100 per. depreciation is admissible irrespective of the fact whether salt pans, etc., in respect of which depreciation is claimed, are new or old. In view of the said decision of this court, the view taken by the Income-tax Officer in this case must be regarded as wrong and it will have to be held that the view taken by the Appellate Assistant Commissioner and Tribunal is correct. In our opinion, the assessee was entitled to 100 per cent. depreciation subject to this qualification that if any depreciation was actually allowed in the past, then the assessee-company will get depreciation less to that extent.
4. In the result, we answer the question referred to us in the affirmative, i.e. against the Revenue and in favour of the assessee. This reference is disposed of accordingly with no order as to costs.