ORDER
Ammini, Judicial Member
1. The only point to be decided in this appeal, by the assessee, is what would be the written down value on which depreciation is to be allowed on technical know-how for the assessment year 1988-89.
2. The assessee claimed depreciation on technical know-how till the assessment year 1982-83 and that had been allowed. The written down value fixed for the purpose of granting depreciation, for the assessment year 1982-83, was Rs. 4,76,490. For the subsequent assessment years, viz., 1983-84 to 1987-88, the assessee did not claim any depreciation on the technical know-how. The assessee has now made the claim for the assessment year 1988-89, on the written down value of Rs. 4,76,490. According to the Assessing Officer, the omission on the part of the assessee, to claim depreciation for the assessment years referred to above was fatal and excluded the same for making the claim in the subsequent years. On appeal, the CIT(A) found that the assessee was entitled to depreciation on technical know-how as there was no dispute with regard to the question whether this was depreciable or not. But, according to him, the written down value on which such depreciation was to be allowed was the value which would obtain had depreciation been granted from assessment years 1983-84 to 1987-88. The assessee is challenging the above view, in this appeal, before us.
3. According to the assessee, it is entitled to depreciation on the written down value fixed for the assessment year 1982-83. Subsequently the assessee has not claimed any depreciation for the assessment years 1983-84 to 1987-88. According to the assessee, finding of the CIT(A) that the assessee is to claim depreciation on the written down value which would have obtained if the assessee had claimed depreciation in the assessment years 1983-84 to 1987-88 is not justified and for this purpose the learned counsel for the assessee relied on the decision of the Supreme Court in the case of Madeva Upendra Sinai v. Union of India [1975] 98 ITR 209 and decision of the Kerala High Court in the case of Jose Kuruvilla v. CAIT [1992] 197 ITR 13 and decision of the Karnataka High Court in the case of CCIT v. Machine Tool Corporation of India Ltd. [1993] 201 ITR 101.
4. In Madeva Upendra Sinai’s case (supra), the Hon’ble Supreme Court held that where in respect of any period, no depreciation was actually allowed under the local law or the depreciation actually allowed cannot be ascertained, the depreciation in respect of that period shall be calculated at the rate for the time being in force under the Income-tax Act, 1961, or under the Indian Income-tax Act, 1922 and the depreciation so calculated shall be deemed to be the depreciation actually allowed under the local law. It is further held that even in the case of assets acquired before the previous year, where in the past no depreciation was computed, actually allowed or carried forward, for no fault of the assessee, the ‘written down value’ may also, under section 43(6)(b), be the actual cost of the assets to the assessee.
The Kerala High Court in the case of Jose Kuruvilla (supra) considered similar issue. In that case, the assessee claimed depreciation on his motor car for the assessment year 1982-83. The car was purchased on November 29, 1978, for a sum of Rs. 38,256. The Agrl. ITO fixed the written down value of the car, for the purpose of allowing depreciation for the year 1982-83 at Rs. 19,039. This was so done after deducting depreciation at 20 per cent per year for the previous years from 1978-79. In revision, the order was upheld. The High Court held that the assessee was entitled to depreciation on the cost of acquisition of the motor car as no depreciation was actually claimed and allowed for the assessment years 1979-80, 1980-81 and 1981-82.
The jurisdictional High Court has, in the case of Machine Tool Corporation of India Ltd. (supra) also held :
“… where the assessee has substituted a revised return, the entries in the relevant column of the original return seeking depreciation could not be used for any purpose. It was, therefore, not open to the Income-tax Officer to advert to the original returns or the statement filed along with it for the purpose of allowing deductions after such claim was expressly withdrawn under the revised return.”
Following the above decisions, we hold that the assessee, in this case, is entitled to get depreciation on the written down value fixed for the assessment year 1982-83 as the assessee has not claimed depreciation from the assessment years 1983-84 to 1987-88, the written down value being Rs. 4,76,490 for the assessment year 1982-83. Thus, we reverse the order of the CIT(A). The claim of the assessee, in this regard, is allowed.
5. In the result, the appeal filed by the assessee is allowed.