{"id":258516,"date":"1989-05-03T00:00:00","date_gmt":"1989-05-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maharana-mills-pvt-ltd-vs-income-tax-tribunal-ahmedabad-on-3-may-1989"},"modified":"2017-12-08T21:42:11","modified_gmt":"2017-12-08T16:12:11","slug":"maharana-mills-pvt-ltd-vs-income-tax-tribunal-ahmedabad-on-3-may-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maharana-mills-pvt-ltd-vs-income-tax-tribunal-ahmedabad-on-3-may-1989","title":{"rendered":"Maharana Mills Pvt. Ltd vs Income Tax Tribunal, Ahmedabad & … on 3 May, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Maharana Mills Pvt. Ltd vs Income Tax Tribunal, Ahmedabad & … on 3 May, 1989<\/div>\n
Equivalent citations: 1989 AIR 1719, 1989 SCR (3)\t 1<\/div>\n
Author: R Pathak<\/div>\n
Bench: Pathak, R.S. (Cj)<\/div>\n
           PETITIONER:\nMAHARANA MILLS PVT. LTD.\n\n\tVs.\n\nRESPONDENT:\nINCOME TAX TRIBUNAL, AHMEDABAD & ORS.\n\nDATE OF JUDGMENT03\/05\/1989\n\nBENCH:\nPATHAK, R.S. (CJ)\nBENCH:\nPATHAK, R.S. (CJ)\nKANIA, M.H.\n\nCITATION:\n 1989 AIR 1719\t\t  1989 SCR  (3)\t  1\n 1989 SCC  Supl.  (2) 210 JT 1989 (2)\t399\n 1989 SCALE  (1)1447\n\n\nACT:\n    Income Tax Act<\/a> 1922--Sections 10(2)(vi)<\/a> and\t 60A<\/a>--Depre-\nciation\t  allowance  and  written  down\t  value--Computation\nof--Saurashtra Income Tax Ordinance 1949--Effect of.\n\n\n\nHEADNOTE:\n    The\t appellant-assessee  is a company  carrying  on\t the\nbusiness  of manufacturing and selling Textile at  Porbunder\n(formerly  a princely State) in Saurashtra in the  State  of\nGujarat.  No income tax was levied by the  former  Porbunder\nState prior to 1948. In 1949 the princely State of, Porbund-\ner  integrated into newly formed Saurashtra State.  In\t1949\nthe  State of Saurashtra promulgated the  Saurashtra  Income\nTax  Ordinance wherein provision for grant  of\tdepreciation\nbased on written down value was made. On 26.1.1950, State of\nSaurashtra became a part of the Union of India as a Part 'B'\nState and thus the Income Tax Act<\/a>, 1922 became applicable to\nthe  State of Saurashtra from 1st April 1950 under  the\t Fi-\nnance  Act, 1950. The said Saurashtra Income  Tax  Ordinance\nwas repealed under Sec. 13 of the Finance Act<\/a>, 1950. Section\n12<\/a> of that Act provided for removal of difficulties, if any,\narising in giving effect to the Income Tax Act<\/a>. The  Central\nGovt.  on  2.12.50 issued an order known as  \"Taxation\tLaws\n(Part B States) Removal of Difficulties) Order 1950\". Clause\n2 of the said order provided the manner in which the  aggre-\ngate  depreciation allowance and written down value were  to\nbe computed. On March 9, 1953, the Central Government in the\nexercise  of its powers under Sec. 60A of the Indian  Income\nTax Act<\/a>, 1922, added an Explanation to the said clause\t(2).\nThe vires of the said Explanation was challenged before\t the\nAndhra\tPradesh High Court which held that  the\t Explanation\nreferred to above was ultra vires the powers of the  Central\nGovernment under Sec. 60A of the Income Tax Act<\/a>.\n    Commissioner  of Income-Tax, Hyderabad v.  D.B.R.  Mills\nLtd<\/a>., [1956] 29 I.T.R. 210.\n    Thereupon, the Central Government issued another notifi-\ncation\tdated  the 8th May, 1956 in exercise of\t its  powers\nunder Section 12<\/a> of the Finance Act 1950, whereby an  Expla-\nnation\tin  identical terms as the earlier  Explanation\t was\nadded  to Clause (2) of the Removal of\tDifficulties  Order,\n1950.  The  validity of the said Explanation  added  by\t the\nnotification dated 8th May, 1956 was upheld by this Court in\nThe  Commissioner of Income-tax, Hyderabad v. Dewan  Bahadur\nRamgopal  Mills Ltd<\/a>., [1961] 2 SCR 318. On the\tappeal\tfrom\nthe said decision of the High Court\n2\nof the Andhra Pradesh in Commissioner of Income-tax, Hydera-\nbad v. D.B.R. Mills, [1956] 29 I.T.R. 210.\n    The\t assessee was assessed under the Indian\t Income\t Tax\nAct<\/a> from 1940-41 in respect of the income arising or  deemed\nto  arise in British India from 1940-41 onwards.  For  these\nyears its income was assessed on receipt basis but in calcu-\nlating the world income depreciation was taken into  consid-\neration\t for arriving at the income outside  British  India.\nThe  assessee  was  also assessed for  the  assessment\tyear\n1949-50\t under\tthe Saurashtra Income Tax  Ordinance,  1949.\nFrom  1950-51 it was assessed under the Income Tax Act<\/a>.\t The\nassessment years concerned in this case are 1957-58, 1958-59\nand  1959-60,  the corresponding previous  years  being\t the\nCalender years 1956, 1957 and 1958 respectively. The case of\nthe assessee is that during the course of the assessment  of\nits income, depreciation was allowed for the assessment year\n1950-51 and thereafter on the original cost of the assets as\nreduced\t by the depreciation allowance given under the\tSau-\nrashtra\t Income Tax Ordinance 1949. The\t respective  written\ndown  values  for the assessment years 1951-52\tand  1952-53\nwere  fixed on the basis of the written down value  for\t the\nassessment year 1950-51. But later the concerned Income\t Tax\nOfficer rectified the calculations of depreciation allowance\nby further reducing the written down value of the assets  of\nthe  assessee. The Income Tax Officer took the written\tdown\nvalue  for  the\t assessment years 1940-41  as  the  starting\npoint.\n    The assessee was not satisfied with this  rectification.\nIts  contention was that the depreciation for  the  previous\nyears  should  have  been calculated only on  the  basis  of\nClause (2) of the Taxation Laws (Part B States) (Removal  of\nDifficulties) Order 1950, which provided for computation  of\nthe  aggregate\tdepreciation allowance on the basis  of\t the\ndeduction  which was actually allowed under  the  Saurashtra\nIncome\tTax Ordinance, 1949. Regarding the explanation,\t the\nassessee contended that it was ultra rites the powers of the\nCentral\t Government as it was not necessary for the  removal\nof any difficulty.\n     The  contentions of the assessee were rejected  by\t the\nIncome\tTax authorities as well as by Income  Tax  Appellate\nTribunal. It was contended by the assessee before the Tribu-\nnal  that  the\tdecision of this Court\tin  Commissioner  of\nIncome\tTax Hyderabad v. Dewan Bahadur Ramgopal Mills  Ltd<\/a>.,\n[1961] 2 SCR 318 was no longer good law in view of the later\ndecision of this Court in Straw Products Ltd. v. Income\t Tax\nOfficer\t \"A\" Ward, Bhopal and Ors<\/a>., [1968] 68, ITR 227.\t The\nTribunal  having rejected the said contentions, at  the\t in-\nstance\tof the assessee a reference was made to the  Gujarat\nHigh Court in which the -following question was raised:\n3\n\t      \"Whether on the facts and in the circumstances\n\t      of  the  case. the Tribunal was  justified  in\n\t      holding  that the depreciation  allowable\t and\n\t      not  'actually allowed' under  the  Saurashtra\n\t      Income-tax  Ordinance, 1949, should  be  taken\n\t      into account in computing the aggregate depre-\n\t      ciation allowance and written down value under\n\t      Sec. 10(2)(vi) of the Income Tax Act<\/a> 1922.\"\nThe High Court held that in its advisory jurisdiction  under\nthe Income Tax Act<\/a>, it could not go into the question of the\nvires  of  the said Explanation and therefore  answered\t the\nquestion  against  the assessee.  Therefore,  the  appellant\nfiled  Special\tCivil Application 1797 of 1972 in  the\tHigh\nCourt.\n    The\t Division  Bench of the High Court in  its  judgment\ndisposing of the said special Civil Application pointed\t out\nthat  the  decision  of this Court in  the  Commissioner  of\nIncome Tax, Hyderabad v. Dewan Bahadur Ramgopal Mills<\/a>, case,\nreferred to above had upheld the validity of the Explanation\nin question. The High Court further opined that some of\t the\narguments  which did not find favour with this court in\t the\nsaid  case were accepted by a Bench of 7 Learned  Judges  in\nthe  Straw Products Ltd. v. Income- Tax Officer,  \"A\"  Ward,\nBhopal\tand Ors<\/a>., [1968] 68 I.T.R. 227. The High Court\tfur-\nther  pointed out that in its decision in the said  case  of\nStraw  Products\t this court had considered the\tdecision  in\nDewan Bahadur Ramgopal Mills Ltd. and explained that on\t the\nfacts  of that case a difficulty had arisen and it  was\t for\nremoving that difficulty that the Order of 1956 was  issued.\nFor the said reason the High Court considered that  decision\nwas  good law and following the same, it dismissed the\tSpe-\ncial Civil Application. Hence this appeal by the assessee.\n    In\tthis  appeal the Explanation added  by\tthe  Central\nGovernment by its notification dated May 8, 1956 as well  as\nthe assessments made on the assessee for the assessment year\n1957-58\t to  1959-60 have been assailed. It  was  inter-alia\ncontended on behalf of the assessee that there was no diffi-\nculty which had arisen in giving effect to the provisions of\nthe  Indian  Income Tax Act<\/a> in the State of  Saurashtra\t and\nhence the pre-condition on which the Central Government\t was\nauthorised  to make an Order under the Removal of  Difficul-\nties  Order  and add the Explanation in question  had  never\ncome into existence and as such the Explanation was  without\nthe authority of Law, invalid and of no legal effect. It was\nfurther\t contended by the assessee that under the scheme  of\nthe  Income Tax Act<\/a>, generally speaking, almost\t the  entire\ncost  of  a capital asset used for purposes of\tbusiness  or\nprofession should\n4\nbe allowed to be written off by way of depreciation, whether\nworked on the basis of straight line method or written\tdown\nvalue. The assessee disputed the mode of assessment and\t the\napplicability of the Explanation.\n    Following this Court's decision in Dewan Bahadur  Ramgo-\npal  Mills' Ltd. [1961] 2 SCR 318 this Court dismissing\t the\nappeal,\n    HELD:  The Saurashtra Income Tax Ordinance was  repealed\nby Section 13<\/a> of the Finance Act 1950 and not by any  provi-\nsion  in  the Indian Income Tax Act<\/a>. The  basic\t and  normal\nscheme\tof depreciation under the Indian Income Tax  Act<\/a>  is\nthat  it  decreases every year, being a\t percentage  of\t the\nwritten\t down  value which in the first year is\t the  actual\ncost and in succeeding years actual cost less all  deprecia-\ntion  actually allowed under the Income Tax Act<\/a> or  any\t Act\nrepealed thereby etc. [18D-E]\n    Commissioner  of Income Tax Hyderabad v.  Dewan  Bahadur\nRamgopal Mills Ltd<\/a>., [1961] 2 SCR 318.\n    The Saurashtra Income Tax Ordinance having been repealed\nnot  by\t the  Indian Income Tax Act<\/a> but by Sec.\t 13  of\t the\nFinance Act<\/a> 1950, a difficulty had come into existence,\t and\nhence  it could not be said that the Government had no\tgood\nbasis  to come to the conclusion that a difficulty  had,  in\nfact, arisen. [18F-G]\nMadeva\tUpendra\t Sinai v. Union of India & Ors<\/a>.,  [1975]  98\nI.T.R.\n209.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 612\t(NT)
\nof 1975.\n<\/p>\n
    From  the Judgment and Order dated 24\/25.9. 1974 of\t the
\nGujarat High Court in Special Civil Application No. 1797  of
\n1972.\n<\/p>\n
    Harish N. Salve, Mrs. A.K. Verma and Joel Pares for\t the
\nAppellant.\n<\/p>\n
    V.S.  Desai,  M.B.\tRao and Ms. A.\tSubhashini  for\t the
\nRespondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nKANIA, J. This is an appeal from the judgment of a  Division
\nof
\n5<\/span>
\nthe  High Court of Gujarat in Special Civil Application\t No.
\n1797  of 1972 on a certificate granted under Article  133(1)<\/a>
\nof  the\t Constitution of India. The relevant  facts  are  as
\nfollows:\n<\/p>\n
    The assessee is a Private Limited Company and carries on
\nthe business of manufacturing and selling textile at Porbun-
\ndar in Saurashtra in the Gujarat State. Before 1948  Porbun-
\ndar  was a part of the Princely State of that name.  No\t In-
\ncome-Tax  was levied by the erstwhile Porbundar State  prior
\nto  1948.  In 1948 there was a merger  of  several  Princely
\nStates and as a result of the merger, the State of  Saurash-
\ntra  was  formed. No income-tax was levied by the  State  of
\nSaurashtra  till  1949 when it\tpromulgated  the  Saurashtra
\nIncome-tax  Ordinance.\tUnder that Ordinance  provision\t was
\nmade  for the grant of depreciation allowance based  on\t the
\nwritten down value. The said Ordinance defined “written down
\nvalue” as follows:\n<\/p>\n
\t      “Written down value” means:\n<\/p><\/blockquote>\n
\t      (a) in case of assets acquired in the previous
\n\t      year, the actual cost to the assessee; and\n<\/p><\/blockquote>\n
\t      (b) in the case of assets acquired before\t the
\n\t      previous year the actual cost to the  assessee
\n\t      less all depreciation actually allowed to\t him
\n\t      under  this Ordinance or allowed under an\t act
\n\t      repealed\tthereby\t or which  would  have\tbeen
\n\t      allowed to him if the Income-tax Act<\/a>, 1922 was
\n\t      in force in past.”\n<\/p><\/blockquote>\n
\t\t  On 26th January, 1950 State of  Saurashtra
\n\t      became  a part of Union of India as a  Part  B
\n\t      State. The Indian Income-tax Act<\/a>, 1922  became
\n\t      applicable to the State of Saurashtra from 1st
\n\t      April,  1950 under the provisions of  the\t Fi-
\n\t      nance Act, 1950. By Section 13<\/a> of the  Finance
\n\t      Act  of 1950, which provides for\trepeals\t and
\n\t      savings,\tthe Saurashtra Income-tax  Ordinance
\n\t      was repealed. Section 12<\/a> of that Act  provided
\n\t      for the removal of difficulties as follows:
\n\t      “If any difficulty arises in giving effect  to
\n\t      the  provisions of any of the Acts,  rules  or
\n\t      orders extended by Section 3<\/a> or Section 11<\/a>  to
\n\t      any  State  or merged territory,\tthe  Central
\n\t      Government may, by order, make such provision,
\n\t      or give such direction, as appears to it to be
\n\t      necessary for removing the difficulty.”
\n\t      In exercise of the powers conferred upon it by
\n\t      Section 12<\/a> of the
\n\t      6<\/span>
\n\t      Finance  Act<\/a>,  1950,  the\t Central  Government
\n\t      issued an order known as “Taxation Laws  (Part
\n\t      B\t States)  (Removal of  Difficulties)  Order,
\n\t      1950”.  Clause (2) of the Order of 1950  reads
\n\t      as follows:\n<\/p><\/blockquote>\n
\t      “Computation of aggregate depreciation  allow-
\n\t      ance and the written down value:\n<\/p><\/blockquote>\n
\t\t       In  making any assessment  under\t the
\n\t      Indian  Incometax Act, 1922, all\tdepreciation
\n\t      actually allowed under any laws or rules of  a
\n\t      Part  B  State  relating\tto  Income-tax\t and
\n\t      Super-tax or any law relating to tax on  prof-
\n\t      its of business shall be taken into account in
\n\t      computing the aggregate depreciation allowance
\n\t      referred\tto in sub-clause (c) of the  Proviso
\n\t      to  Clause  (vi) of sub-section  (2)  and\t the
\n\t      written  down value under clause (b)  of\tsub-
\n\t      section (5) of Section 10<\/a> of the said Act.
\n\t\t\tProvided  that, where in respect  of
\n\t      any  asset, depreciation has been allowed\t for
\n\t      any  year both in the assessment made  in\t the
\n\t      Part  B State and in the taxable\tterritories,
\n\t      the greater of the two sums allowed shall only
\n\t      be taken into account.”\n<\/p><\/blockquote>\n
\t\t  This order was made by the Central Govern-
\n\t      ment  on\tDecember 2, 1950.  Subsequently,  on
\n\t      March  9,\t 1953,\tin exercise  of\t the  powers
\n\t      conferred upon it by Section 60A<\/a> of the Indian
\n\t      Income-tax Act, 1922, an Explanation was added
\n\t      by the Central Government to the above  Clause
\n\t      (2) of the Order of 1950 with effect from that
\n\t      date and that Explanation was in the following
\n\t      terms:\n<\/p><\/blockquote>\n
\t      “For  the purpose of this paragraph,  the\t ex-
\n\t      pression\t‘all depreciation  actually  allowed
\n\t      under  any  laws or rules of a Part  B  State’
\n\t      means and shall be deemed always to have meant
\n\t      the aggregate allowance for depreciation taken
\n\t      into  account  in computing the  written\tdown
\n\t      value  under  any laws or rules of  a  Part  B
\n\t      State  or carried forward under the said\tlaws
\n\t      or rules.”<\/p><\/blockquote>\n
    In Commissioner of Income-tax, Hyderabad v. D.B.R. Mills
\nLtd<\/a>.,  [1956]  29 I.T.R. 210 the Hyderabad High\t Court\theld
\nthat  this  Explanation was ultra vires the  powers  of\t the
\nCentral\t Government under Section 60A<\/a> of the Indian  Income-
\ntax Act, 1922. After the said decision of the High Court the
\nCentral Government issued a notifica-\n<\/p>\n
7<\/span><\/p>\n
tion  on 8th May, 1956 in exercise of the  powers  conferred
\nupon  it  by Section 12<\/a> of the Finance Act, 1950  and  under
\nthis  notification an Explanation in identical terms as\t the
\nearlier Explanation inserted by an order made under  Section
\n60A<\/a>  of the Indian Income-tax Act, 1922 was added to  Clause
\n(2)  of the Removal of Difficulties Order, 1950. As  far  as
\nthe  appellant-assessee is concerned, it was assessed  under
\nthe  Indian  Income-tax Act<\/a> from 1940-41 in respect  of\t the
\nincome\tarising\t or deemed to arise in\tBritish\t India\tfrom
\n1940-41 onwards. For these years income of the assessee\t was
\ncomputed  on  receipt basis, but in  calculating  the  world
\nincome, depreciation was taken into consideration for arriv-
\ning  at the income outside British India. The  assessee\t was
\nalso assessed for assessment year 1949-50 under the Saurash-
\ntra  Income-tax\t Ordinance, 1949. From the  assessment\tyear
\n1950-51\t onwards the assessee was assessed under the  Indian
\nIncome-tax Act<\/a>, 1922 (referred to hereinafter as “the Indian
\nIncome-tax  Act<\/a>“).  The assessment years with which  we\t are
\nconcerned  are\tthe assessment years  1957-58,\t1958-59\t and
\n1959-60, the corresponding previous years being the calendar
\nyears  1956, 1957 and 1958 respectively. It is the  case  of
\nthe assessee that during the course of the assessment of the
\nassessee’s  income under the Act of 1922,  depreciation\t was
\nallowed\t for the assessment year 1950-51 and  thereafter  on
\nthe original cost of the assets as reduced by the  deprecia-
\ntion  allowance given under the Saurashtra Income-tax  Ordi-
\nnance, 1949. The respective written down values for  assess-
\nment  years 1951-52 and 1952-53 were fixed on the  basis  of
\nthe written down value for assessment year 1950-51. However,
\nsubsequently, the Income-tax Officer concerned having juris-
\ndiction\t over  the  case of the\t petitioner,  rectified\t the
\ncalculations  of depreciation allowance by further  reducing
\nthe  written  down value of the assets of  the\tassessee  by
\nadopting the procedure which has been set out in paragraph 7
\nof the petition filed by the assessee. What was done by\t the
\nIncome-tax Officer was that the written down value taken for
\nthe  assessment\t year  1940-41 by  the\tIncome-tax  Officer,
\nBombay\twas taken as the starting point. From  this  written
\ndown  value, the depreciation that was actually\t allowed  to
\nthe  assessee in respect of the assessment years 1940-41  to
\n1944-45\t was  deducted. For the assessment years  194546  to
\n1948-49\t the written down value was calculated after  calcu-
\nlating\tthe depreciation allowance which would be  allowable
\nunder the rules. For the assessment year 1949-50, the depre-
\nciation\t  allowance  as\t calculated  under  the\t  Saurashtra
\nIncome-tax Ordinance, 1954 was deducted. For the  assessment
\nyears 1950-51 to 1952-53, the depreciation allowance actual-
\nly  deducted  under the assessment orders passed  under\t the
\nIndian Income-tax Act<\/a> was calculated and for the  assessment
\nyear 1953-54 the depreciation allowance was calculated under
\nRule 8 of the
\n8<\/span>
\nIndian\tIncome-tax  Rules made under the  Indian  Income-tax
\nAct<\/a>. For the assessment years 1954-55 to 1956-57 the  depre-
\nciation was calculated on the basis of the above  rectifica-
\ntion  order.  The  contention of the assessee  is  that\t the
\ndepreciation for the previous years should have been  calcu-
\nlated  only on the basis of Clause (2) of the Taxation\tLaws
\n(Part B States) (Removal of Difficulties) Order, 1950, which
\nprovided  for  computation  of\tthe  aggregate\tdepreciation
\nallowance  on the basis of the deduction which was  actually
\nallowed under the provisions of Saurashtra Income-tax  Ordi-
\nnance,\t1949. Regarding the Explanation which was  added  as
\nset out earlier, the contention of the assessee was that  it
\nwas  ultra vires the powers of the Central Government as  it
\nwas  not necessary for the removal of any  difficulty.\tThis
\ncontention  of the assessee was rejected by  the  Income-tax
\nauthorities  as well as the Income-tax\tAppellate  Tribunal.
\nFor  the assessment years 1957-58 and 1959-60  the  assessee
\nagain  contended before the Income-tax authorities  and\t the
\nTribunal that Explanation to Clause (2) as notified in\t1956
\nwas ultra vires the powers of the Central Government. It was
\ncontended  by  the  assessee before the\t Tribunal  that\t the
\ndecision  of this Court in The Commissioner  of\t Income-tax,
\nHyderabad  v. Dewan Bahadur Raingopal Mills Ltd<\/a>.,  [1961]  2
\nS.C.R.\t318; (1961) 41 I.T.R. 280 which upheld the  validity
\nof  the\t Explanation was no longer good law in view  of\t the
\ndecision of this Court in Straw Products Ltd. v.  Income-tax
\nOfficer<\/a>.  “A” Ward, Bhopal, and Ors., [1968] 68 I.T.R.\t227.
\nThe contention of the assessee was rejected by the  Tribunal
\nby its order dated April 16, 1969. From this decision of the
\nTribunal  at  the instance of the assessee a  reference\t was
\nmade to the Gujarat High Court in which the following  ques-
\ntion was raised:\n<\/p>\n
\t      “Whether on the facts and in the circumstances
\n\t      of  the  case, the Tribunal was  justified  in
\n\t      holding  that the depreciation  allowable\t and
\n\t      not  ‘actually allowed’ under  the  Saurashtra
\n\t      Income-tax  Ordinance,  1949 should  be  taken
\n\t      into account in computing the aggregate depre-
\n\t      ciation allowance and written down value under
\n\t      Section  10(2)(vi)<\/a>  of  the  Income-tax\tAct,
\n\t      1922?”\n<\/p><\/blockquote>\n
    This reference was numbered as Reference No. 45 of 1970.\n<\/p><\/blockquote>\n
On August 17, 1972 the High Court held that in its  advisory
\njurisdiction  under the Income-tax Act<\/a> it could not go\tinto
\nthe  question of the vires of the said Explanation  and\t an-
\nswered\tthe  question against the  assesee.  Thereafter\t the
\nassessee  filed Special Civil Application No. 1797  of\t1972
\nfrom  the decision wherein this appeal arises. In this\tSpe-
\ncial Civil Application the vires of the Explanation added by
\nthe Central Government by its
\n9<\/span>
\nnotification  dated  May 8, 1956 in exercise of\t the  powers
\nunder  Section 12<\/a> of the Finance Act of 1950 as well as\t the
\nassessments  made on the assessee for the  assessment  years
\n1957-58\t to 1959-60 were challenged. The Division  Bench  of
\nthe Gujarat High Court in its impugned judgment pointed\t out
\nthat  the  decision  of this Court in  The  Commissioner  of
\nIncome-tax, Hyderabad v. Dewan Bahadur Ramgopal Mills  Ltd<\/a>.,
\nhad upheld the validity of the said Explanation. The Gujarat
\nHigh  Court noted that the decision of this Court  in  Straw
\nProducts  Ltd. v. Income-tax Officer<\/a>, arose from the  merged
\nState  of Bhopal. Some of the arguments which did  not\tfind
\nfavour\twith this Court in the case of The  Commissioner  of
\nIncome-tax, Hyderabad v. Dewan Bahadur Ramgopal Mills  Ltd<\/a>.,
\nwere  accepted\tby a Bench of seven learned Judges  of\tthis
\nCourt in the case of Straw Products. The Gujarat High  Court
\npointed\t out  that  in its decision in\tthe  case  of  Straw
\nProducts, this Court had considered the decision in the case
\nof  Dewan  Bahadur Ramgopal Mills Ltd., and  explained\tthat
\ndecision  by  stating that the Supreme Court  was  satisfied
\nthat  on the facts of that case a difficulty had arisen\t and
\nit  was for removing that difficulty that the Order of\t1956
\nwas  issued.  The Division Bench of the Gujarat\t High  Court
\nconsidered  the\t decision  of this Court  in  Dewan  Bahadur
\nRaingopal  Mills  Ltd., as binding and\tfollowing  the\tsame
\ndismissed the Special Civil Application filed by the  asses-
\nsee.\n<\/p>\n
    Mr.\t Salve\tmade two submissions before  us.  The  first
\nsubmission made by him was the same as made on behalf of the
\nassessee  before the High Court, namely, that there  was  no
\ndifficulty  which had arisen in giving effect to the  provi-
\nsions of the Indian Income-tax Act<\/a> in the State of  Saurash-
\ntra and hence the pre-condition on which the Central Govern-
\nment  was authorised to make an order under the\t Removal  of
\nDifficulties  Order and add the Explanation had\t never\tcome
\ninto  existence\t and  hence adding of  the  Explanation\t was
\nwithout\t any authority of law and invalid and no  legal\t ef-
\nfect. The next submission urged by Mr. Salve was that it  is
\nthe  fundamental  scheme of the Indian Incometax  Act  that,
\ngenerally  speaking,  almost the entire cost  of  a  capital
\nasset used for purposes of business or profession should  be
\nallowed to be written off by way of depreciation. This could
\nbe done in more than one ways. It could be done by  allowing
\na  fixed  percentage of the actual cost to  be\tdeducted  as
\ndepreciation  allowance every year till the entire  cost  is
\nwritten off. This is known as the Straight Line Method.\t The
\nother  is the method of calculating the depreciation on\t the
\nbasis  of  written down value. Written down value  would  be
\ndetermined  by deducting a fixed percentage of the  original
\ncost of the asset in assessment year relevant to the  previ-
\nous year in which the asset was
\n10<\/span>
\nacquired  and thereafter giving the same percentage  of\t the
\nwritten down value determined on the footing of the original
\ncost  less  the depreciation already  allowed.\tTaking\tinto
\naccount\t the  definition of the term  “written\tdown  value”
\ncontained  in  Section\t10<\/a>  of\tsub-section  (5)  of  Indian
\nIncome-tax  Act<\/a>, 1922, the basic scheme under the  said\t Act
\nappears to be that in determining the written down value for
\ndepreciation allowance, the taxing authority can deduct only
\nsuch amounts as have been allowed earlier by way :of  deduc-
\ntion. It was submitted by him that this position was accept-
\ned  in the decision of this Court in Straw Products Ltd.  v.
\nIncome-tax  Officer<\/a>.  In the present case, if  the  impugned
\nExplanation was applied, the result would be that the  writ-
\nten down value of the capital asset of the assessee acquired
\nprior  to 1949 would be determined by making deductions\t for
\ndepreciation allowance which was not actually allowed to the
\nassessee  between the assessment years 1945-46\tto  1948-49.
\nThis result would follow from the manner in which the  writ-
\nten  down value was calculated under the Saurashtra  Income-
\ntax Ordinance of 1949. It was urged by him that in  exercise
\nof  its\t delegated  powers it was not open  to\tthe  Central
\nGovernment to enact such an Explanation. In order to examine
\nthis  contention it would be useful to bear in mind some  of
\nthe provisions of the Indian Income-tax Act<\/a>. In that Act the
\ncharge of Income-tax is in respect of “total income” of\t the
\nprevious  year. The expression “total income”, very  briefly
\nstated,\t is  defined  in sub-section (15) of  Section  2<\/a>  as
\nmeaning\t the total amount of income, profits and gains\tcom-
\nputed  in the manner laid down in the Act. Chapter 3 of\t the
\nAct  deals  with the various Heads of Income  chargeable  to
\nIncome-tax  and Section 10<\/a> deals with the Head of Income  in
\nrespect\t of  profits  or gains of  business,  profession  or
\nvocation  carried  on by the assessee.\tSub-section  (2)  of
\nSection\t 10<\/a> deals with the allowances which have to be\tmade
\nin  the computation of the profits and gains from  business,
\nprofession  or\tvocation and Clause (vi) of  the  said\tsub-
\nsection\t provides for depreciation. The relevant portion  of
\nClause (vi) ran as follows:\n<\/p>\n
\t      “In respect of depreciation of such buildings,
\n\t      machinery,   plant  or  furniture\t being\t the
\n\t      property\tof  the assessee, a  sum  equivalent
\n\t      where  the assets are ships other\t than  ships
\n\t      ordinarily  plying  on inland waters  to\tsuch
\n\t      percentage on the original cost thereof to the
\n\t      assessee as may in any case or class of  cases
\n\t      be  prescribed and in any other case, to\tsuch
\n\t      percentage  on the written down value  thereof
\n\t      as  may in any case or class or cases be\tpre-
\n\t      scribed.”\n<\/p><\/blockquote>\n
\t      The expression “written down value” as used in
\n\t      sub-section (2)
\n\t      11<\/span>
\n\t      of  Section 10<\/a> of the Act has been defined  in
\n\t      sub-section  (5) of Section 10<\/a>.  The  relevant
\n\t      part  of\tClause (b) of the  said\t sub-section
\n\t      runs as follows:\n<\/p><\/blockquote>\n
\t      “In  the\tcase of assets acquired\t before\t the
\n\t      previous year the actual cost to the  assessee
\n\t      less all depreciation actually allowed to\t him
\n\t      under  this Act, or any Act repealed  thereby,
\n\t      or  under\t executive orders  issued  when\t the
\n\t      Indian Income-tax Act<\/a>, 1886 (II of 1886),\t was
\n\t      in force.\n<\/p><\/blockquote>\n
\t      X\t\t\t   X\t\t\t   X\n\t      X\n\t\t\tProvided  that\tin  the\t case  of  a\n<\/pre>\n
\t      building previously the property of the asses-
\n\t      see  and brought into use for the purposes  of
\n\t      the business, profession or vocation after the
\n\t      28th  day\t of February,  1946,  ‘written\tdown
\n\t      value’  means the actual cost to the  assessee
\n\t      reduced by an amount equal to the depreciation
\n\t      calculated  at the rate in force on that\tdate
\n\t      that would have been allowable had the  build-
\n\t      ing been used for the aforesaid purposes since
\n\t      the  date of its acquisition by  the  assessee
\n\t      and had the provisions of this Act relating to
\n\t      the  allowance for depreciation been in  force
\n\t      on and from the date of acquisition.”<\/p><\/blockquote>\n
    In\tThe Commissioner of Income-tax, Hyderabad  v.  Dewan
\nBahadur\t Ramgopal Mill Ltd<\/a>., the very Explanation  added  by
\nthe notification dated 8.5.1956, which is challenged  before
\nus, came up for consideration before a Constitution Bench of
\nthis Court.\n<\/p>\n
    The\t facts in that case were that prior to\tJanuary\t 26,
\n1950,  when the erstwhile State of Hyderabad merged  in\t the
\nUnion  of  India and became a Part B State,  the  respondent
\ncompany\t was  assessed\tto Income-tax  under  the  Hyderabad
\nIncome-tax Act<\/a>, under which depreciation allowance was given
\nto it on the basis of the written down value of its  assets,
\nsuch  as  buildings, machinery plants, etc.,  in  accordance
\nwith clause (c) of section 12(5)<\/a> of that Act, which provided
\nthat in the case of assets acquired before the previous year
\nand  before  the commencement of the Act, the  written\tdown
\nvalue  would  be the actual cost to the\t assessee  less\t (i)
\ndepreciation at the rates applicable to the assets calculat-
\ned on the actual costs for the first year since\t acquisition
\nand  for the next year on the actual cost diminished by\t the
\ndepreciation allowance for one year and so on, for each year
\nupto  the  commencement of that Act  and  (ii)\tdepreciation
\nactually allowed to the assessee
\n12<\/span>
\non  such assets for each financial year after the  commence-
\nment  of  the Act. After the merger of\tHyderabad  with\t the
\nUnion  of  India, by sections 3<\/a> and 13<\/a> of the  Finance\tAct,
\n1950, the taxation laws in force in that State were repealed
\nand  the Indian Income-tax Act<\/a>, 1922, was extended  to\tthat
\narea; and, in exercise of the powers conferred by section 12<\/a>
\nof  the Finance Act, 1950, the Central Government  issued  a
\nnotification  dated  December 2, 1950, called  the  Taxation
\nLaws (Part B States) (Removal of Difficulties) Order,  1950.
\nParagraph  2 of the Order provided that “in making  any\t as-
\nsessment under the Indian Income-tax Act<\/a>, 1922, all depreci-
\nation  actually allowed under any laws or rules of a Part  B
\nState\t……..  shall be taken into account  in  computing
\nthe aggregate depreciation allowance referred to in  proviso\n<\/p>\n
(c)  to section 10(2)(vi)<\/a> and the written down\tvalue  under
\nsection 10(5)(b)<\/a> of the said Act”.\n<\/p>\n
    For\t the  assessment year 195 1-52\tthe  respondent\t was
\nassessed for the first time under the Indian Income-tax Act<\/a>,
\nand  basing its claim on paragraph 2 of the aforesaid  Order
\nit asked for depreciation allowance in respect of its assets
\nby  working  out the value thereof at  their  inception\t and
\ndeducting therefrom such depreciation as was allowed for the
\nthree  assessment years in which it was assessed  under\t the
\nHyderabad Income-tax Act<\/a>. By an order dated November 30, 195
\n1,  the Incometax Officer disallowed the respondent’s  claim
\non the ground that it was against the principle inherent  in
\ngranting  depreciation\tallowance which must  decrease\tfrom
\nyear  to  year. The matter was taken up to  this  Court\t and
\nwhile  it  was pending there, on May 8,\t 1956,\tthe  Central
\nGovernment  issued a notification in exercise of its  powers
\nconferred  on  it by section 12<\/a> of the\tFinance\t Act,  1950,
\nwhereby an Explanation was added to the aforesaid  paragraph
\n2 as follows:\n<\/p>\n
\t      “For  the purpose of this paragraph,  the\t ex-
\n\t      pression\t‘all depreciation  actually  allowed
\n\t      under  any  law or rules of a  Part  B  State’
\n\t      means and shall be deemed to have always meant
\n\t      the aggregate allowance for depreciation taken
\n\t      into  account  in computing the  written\tdown
\n\t      value  under  any laws or rules of  a  Part  B
\n\t      State  or carried forward under the said\tlaws
\n\t      or rules.”\n<\/p><\/blockquote>\n
The  respondent challenged the validity of the\tnotification
\nof  1956 and also its applicability to the present  case  on
\ngrounds (1) that it was ultra vires the powers conferred  on
\nthe  Central  Government by section 12<\/a> of the  Finance\tAct,
\n1950,  (2) that it contravened Article 14<\/a> of  the  Constitu-
\ntion, and (3) that, in any case, it could have no retrospec-
\ntive effect.\n<\/p>\n
13<\/span><\/p>\n
It was held by this Court that the true scope and effect  of
\nSection 12<\/a> of the Finance Act, 1950 was that it was for\t the
\nCentral\t Government  to determine if any difficulty  of\t the
\nnature indicated in the section arises and then to make such
\norder or give such direction, as appeared to it to be neces-
\nsary  to remove the difficulty, the legislature having\tleft
\nthe matter to the executive.\n<\/p>\n
    In the present case, a difficulty had arisen because  if
\ndepreciation actually allowed under the Hyderabad Income-tax
\nAct<\/a> was taken into account in computing the aggregate depre-
\nciation\t allowance and the written down value, an  anomalous
\nresult\twould follow, namely, depreciation allowance  to  be
\nallowed\t to  the assessee in the accounting year  under\t the
\nIndian Income-tax Act<\/a> would be more than what was allowed in
\nprevious  years under the Hyderabad Income-tax\tAct<\/a>.  Conse-
\nquently,  the Central Government was within its power  under
\nsection 12<\/a> in making the notification dated May 8, 1956.
\n    It\twas also held that the notification of 1956  applied
\nto all those to whom paragraph 2 of the Taxation Laws  (Part
\nB  States)  (Removal of Difficulties) Order, 1950,  was\t ap-
\nplicable and created no unequal treatment of persons in\t the
\nlike  situation. Accordingly, the notification did not\tcon-
\ntravene Article 14<\/a> of the Constitution. In the course of the
\nleading judgment, S.K. Das, J., set out the chain of  events
\nwhich  led to the notification dated May 8, 1956 under\tsec-
\ntion 12 of the Finance Act<\/a>, 1950 being issued which we\thave
\nalready set out earlier and went on to state as follows:\n<\/p>\n
\t      “The  basic and normal scheme of\tdepreciation
\n\t      under  the  Indian Income-tax Act<\/a> is  that  it
\n\t      decreases\t every year, being a  percentage  of
\n\t      the written down value which in the first year
\n\t      is  the  actual cost and in  succeeding  years
\n\t      actual  cost  less all  depreciation  actually
\n\t      allowed  under the Income-tax Act<\/a> or  any\t Act
\n\t      repealed thereby etc. The Hyderabad Income-tax
\n\t      Act<\/a> not having been repealed by the  Incometax
\n\t      Act but by the Finance Act<\/a>, 1950, there was  a
\n\t      difficulty  in  allowing\tdepreciation  to  an
\n\t      assessee\tin a Part B State in the first\tyear
\n\t      of assessment under the Indian Income-tax Act<\/a>.
\n\t      This  difficulty was sought to be\t removed  by
\n\t      paragraph\t 2  of the Removal  of\tDifficulties
\n\t      Order, 1950. If however, depreciation actually
\n\t      allowed under the Hyderabad Income-tax Act<\/a> was
\n\t      taken into account in computing the  aggregate
\n\t      depreciation  allowance and the  written\tdown
\n\t      value, an anomalous result would follow as  in
\n\t      the present
\n\t      14<\/span>
\n\t      case,  namely,  depreciation allowance  to  be
\n\t      allowed to the assessee in the accounting year
\n\t      under  the Indian Incometax Act would be\tmore
\n\t      than what was allowed in previous years  under
\n\t      the  Hyderabad  Income-tax  Act<\/a>.\tThis   would
\n\t      create  a disparity and be against the  scheme
\n\t      of the Indian Income-tax Act<\/a>. It was therefore
\n\t      necessary to explain paragraph 2 of the Remov-
\n\t      al of Difficulties Order, 1950, to  assimilate
\n\t      or harmonise the position regarding  deprecia-
\n\t      tion  allowance, and the Explanation added  in
\n\t      1953 or 1956 was obviously intended to  remove
\n\t      the  difficulty arising out of that  disparity
\n\t      or disharmony.”\n<\/p><\/blockquote>\n
    It\tis  not disputed that, if this decision is  to\tfol-\n<\/p><\/blockquote>\n
lowed,\tboth the contentions urged by the  learned  Counsel,
\nMr. Salve before us must be negatived. The decision  clearly
\nlays down that a difficulty had come into existence and\t the
\nCentral\t Government had, in exercise of the power  delegated
\nto it, issued the said notification in 1956 adding the\tsaid
\nExplanation  to resolve the difficulty. The Court  took\t the
\nview that, under the scheme of the Indian Income-tax Act<\/a>, in
\nrespect\t of  assets acquired before  the  relevant  previous
\nyear,  depreciation  is to be allowed on the  basis  of\t the
\noriginal cost less depreciation in respect of earlier years.
\nviz.,  the years intervening between the  relevant  previous
\nyear  and the year of acquisition. Where any tax  on  income
\nwas levied during any of these intervening years, the actual
\ncost  would have to be reduced by the depreciation  actually
\nallowed but in respect of such intervening years when  there
\nwas  no\t tax levied on income, depreciation  on\t a  notional
\nbasis would have to be deducted from the actual cost of\t the
\nasset.\tIn deducting an amount on account of  such  notional
\ndepreciation  there  seems to be nothing against  the  basic
\nscheme\tof  the Income-tax Act<\/a>. These  are  the\t conclusions
\nwhich  flow from the said decision of Court in the  case  of
\nDewan  Bahadur\tRamgopal Mills Ltd.. The said  decision\t has
\nbeen  rendered by a Bench comprising five learned Judges  of
\nthis  Court and must normally be regarded as  binding.\tupon
\nus.  The  question, however, is whether\t the  said  decision
\nneeds  to be reconsidered in view of two later decisions  of
\nthis  Court which we shall presently discuss. The  first  of
\nthe  said  two decisions cited by Mr. Salve is that  in\t the
\ncase  of  Madeva  Upendra Sinai v. Union of  India  &  Ors<\/a>.,
\n[1975] 98 I.T.R. 209. The said decision has been rendered by
\nmajority comprising four learned Judges out of five compris-
\ning  the  Bench which decided the case. In  that  case,\t the
\nchallenge  was\tto  the validity of the\t second\t Proviso  to
\nClause (2) of the Taxation Laws (Extension to Union Territo-
\nries)  (Removal of Difficulties) Order No. 2 of\t 1970  which
\nwas deemed to have come into force on 1st April,
\n15<\/span>
\n1963.  In  brief, this clause provided that  in\t making\t any
\nassessment under the Indian Income-tax Act<\/a>, 1961 all  depre-
\nciation actually allowed under the local laws shall be taken
\ninto account in computing the written down value. The second
\nProviso to that Clause was as follows:\n<\/p>\n
\t      “Provided further that where in respect of any
\n\t      period,  no depreciation was actually  allowed
\n\t      under the local law or the depreciation  actu-
\n\t      ally allowed cannot be ascertained,  deprecia-
\n\t      tion in respect of that period shall be calcu-
\n\t      lated at the rate for the time being in  force
\n\t      under  the Income-tax Act<\/a>, 1961 or  under\t the
\n\t      Indian Income-tax Act<\/a>, 1922 ……..  and\t the
\n\t      depreciation so calculated shall be deemed  to
\n\t      be the depreciation actually allowed under the
\n\t      local law”.<\/p><\/blockquote>\n
    The\t majority judgment took the view that the  existence
\nor  arising  of a difficulty was the sine qua  non  for\t the
\nexercise of the power under Clause (7) of the Taxation\tLaws
\n(Extension  to\tUnion  Territories)  Regulation,  1963.\t The
\n“difficulty” contemplated by that clause had to be a  diffi-
\nculty  arising “in giving effect to” the provisions  of\t the
\nAct, etc., and not a difficulty arising aliunde or an extra-
\nneous  difficulty.  Further, the  Central  Government  could
\nexercise  the power under the clause only to the  extent  it
\nwas  necessary\tfor applying or giving effect  to  the\tAct,
\netc.,  and no further. The second Proviso to Clause  (2)  of
\nthe said Order of 1970 sought to raise the taxable income of
\nthe  assessee inconsistently with the scheme of the  Income-
\ntax  Act, and was ultra vires the Central  Government  under
\nClause\t7  of the 1963 Regulation and the  Revenue  was\t not
\nentitled to lay tax on the basis of the depreciation  allow-
\nance  computed in accordance with that proviso. It was\tfur-
\nther held that the said second proviso to Clause (2) of\t the
\n1970  order would, in the implementation of the Act,  create
\ndifficulties  rather than remove them. It was  further\theld
\nthat  the  key word in Clause (b) of Section  43(6)<\/a>  of\t the
\nIncome-tax Act, 1961 is “actually”. 11 is the antithesis  of
\nthat which is merely speculative, theoretical or  imaginary.
\n“Actually”  contra-indicates a deeming construction  of\t the
\nword “allowed” which it qualifies. It cannot be stretched to
\nmean “notionally allowed” or merely allowable on a  notional
\nbasis.\tIn Straw Products Ltd. a challenge was made  to\t the
\nvalidity  of sub-clause (b) of paragraph 2 of  the  Taxation
\nLaws  (Merged States) (Removal of Difficulties) Order,\t1949
\ninserted  therein  by  the  Taxation  Laws  (Merged  States)
\n(Removal of Difficulties) Amendment Order, 1962.1t was\theld
\nthat  the said sub-clause of the said Explanation was  ultra
\nvires
\n16<\/span>
\nthe Central Government under Section 6<\/a> of the Taxation\tLaws
\n(Extension  to Merged States and Amendment) Act<\/a>, 1949  under
\nwhich it was purported to be made, since no “difficulty” was
\nproved to have arisen justifying the invocation of the power
\nunder Section 6<\/a>; and the revenue authorities were not  enti-
\ntled  to  levy tax on the basis\t of  depreciation  allowance
\ncomputed  in  accordance  with sub-clause (b)  of  the\tsaid
\nExplanation  to paragraph 2 of the Order. It was  held\tthat
\nthe  expression\t “depreciation\tactually  allowed”  connotes
\nunder  Section 10(2)(vi)<\/a> of the Indian Income-tax Act,\t1922
\nunder  Clause  (2)  of the  Taxation  Laws  (Merged  States)
\n(Removal  of Difficulties) Order, 1949 and the\tnotification
\nunder Section 60A<\/a> of the Income-tax Act, depreciation  taken
\ninto account in assessing the income of an assessee  arising
\nfrom  carrying on business, and does not  mean\tdepreciation
\nmerely\tallowable or applicable under the  taxing  provision
\n(68 I.T.R. 227 at p. 236). The Court took the view that\t the
\nexercise  of the power under Section 6<\/a> of the Taxation\tLaws
\n(Extension to Merged States and Amendment) Act<\/a>, 1949 to make
\nprovisions or to issue directions as may appear necessary to
\nthe Central Government is conditioned by the existence of  a
\ndifficulty arising in giving effect to the provisions of any
\nAct,  rule  or\torder extended by Section 3<\/a>  to\t the  Merged
\nStates. The Section does not make the arising of a difficul-
\nty a matter of subjective satisfaction of the Government: it
\nis  a  condition  precedent to the exercise  of\t power,\t and
\nexistence  of the condition, if challenged, must  be  estab-
\nlished\tas an objective fact. It may be mentioned  that\t the
\ndecision  in  the case of The  Commissioner  of\t Income-tax,
\nHyderabad v. Dewan Bahadur Ramgopal Mills Ltd<\/a>., was  noticed
\nand  discussed in this judgment but it was pointed out\tthat
\nin  that case the difficulty had arisen because, as  pointed
\nout  by\t the Court in that case but for\t the  Explanation  a
\ndifficulty  would  have arisen insofar as  the\tdepreciation
\nallowance  allowed to assessee under the  Indian  Income-tax
\nAct<\/a>  would  have been more than the  depreciation  allowance
\nunder the Hyderabad Income-tax Act<\/a>.\n<\/p>\n
    After giving our anxious consideration to the matter, we
\nfind  ourselves\t unable\t to accept the\tsubmissions  of\t Mr.
\nSalve,\tlearned Counsel for the assessee. As pointed out  by
\nus  earlier, it was frankly conceded by the learned  Counsel
\nthat unless we took the view that the decision of this Court
\nin The Commissioner of Income Tax, Hyderabad v. Dewan  Baha-
\ndur Ramgopal Mills Lid, was not good law or, at least,\tthat
\nit needed reconsideration by a larger Bench, we must  follow
\nthat  decision and the appeal of the assessee must  be\tdis-
\nmissed.\t It is the undisputed position that the very  provi-
\nsion  which is challenged before us was\t earlier  challenged
\nbefore a Constitution Bench of this Court in
\n17<\/span>
\nthe  aforementioned case and that challenge  was  negatived.
\nThe  mainplank of learned Counsel’s argument is that in\t the
\ncase  of Straw Products Ltd. v. Income-tax Officer<\/a>,  a\tview
\nhas been taken which is inconsistent with the view taken  in
\nThe  Commissioner of Income-tax, Hyderabad v. Dewan  Bahadur
\nRamgopal  Mills\t Ltd.  Now<\/a>, in fact, we find  that  a  Bench
\ncomprising  seven learned Judges of this Court in this\tcase
\nof  Straw Products Ltd. has considered the decision of\tthis
\nCourt in Dewan Bahadur Ramgopal Mills Ltd. and has  observed
\nthat  the case could be distinguished because in  that\tcase
\nthere was a difficulty which had, in fact, arisen and hence,
\nit was necessary to issue the Removal of Difficulties Order,
\n1956.  The observations of this Court in that case (at\tpage
\n237  to\t 238 of the aforesaid Report) only  show  that\tthis
\nCourt  disapproved the interpretation given to the  decision
\nin  the\t case of Dewan Bahadur Ramgopal Mills  Ltd.  by\t the
\nMadhya Pradesh High Court, namely, that it was a matter\t for
\nsubjective satisfaction of the Government to decide  whether
\na difficulty has arisen and it was not open to the Court  to
\ninvestigate that question. It was pointed out that in  Dewan
\nBahadur\t Ramgopal Mills Ltd. this Court was satisfied  that,
\nin  fact a difficulty had arisen and that difficulty had  to
\nbe  removed  and for removing the difficulty, the  Order  of
\n1956  was issued. On a fair reading of the decision  in\t the
\ncase  of Straw Products along with the decision in the\tcase
\nof Dewan Bahadur Ramgopal Mills Ltd., it appears to us\tthat
\nthe  view taken in Straw Products Ltd., is that although  it
\nis for the Government to subjectively satisfy itself that  a
\ndifficulty has arisen of the kind set out in those decisions
\nbefore\tan  order  can be issued under the  power  to  issue
\norders for removal of difficulties but that satisfaction  is
\nnot  conclusive\t as suggested by the High  Court  of  Madhya
\nPradesh and it is the duty of the Court concerned to examine
\nfor  itself  whether there was a reasonable  basis  for\t the
\nGovernment  to have come to such a conclusion.\tAnyway,\t al-
\nthough\tit is not for the Court to determine for  itself  in
\nthe first instance whether such a difficulty, as contemplat-
\ned,  had arisen, it is open to the Court to see whether\t the
\nGovernment had a sound basis to come to the conclusion\tthat
\nsuch  a difficulty had arisen. The decision in the  case  of
\nStraw  Products, therefore, in no way casts doubt the  deci-
\nsion of this Court in Dewan Bahadur Ramgopal Mills Ltd.\t The
\nother case relied upon by Mr. Salve. namely, Madeva Sinai v,
\nUnion Of India has cast no doubt whatever on the decision of
\nthis  Court  in Dewan Bahadur Ramgopal Mills  Ltd.  but\t the
\nCourt there took the view that the existence of a difficulty
\nwas  sine qua non for the exercise of the power in Clause  7
\nof  the\t Taxation  Laws\t (Extension  to\t Union\tTerritories)
\n(Removal of Difficulties) Regulation, 1963.\n<\/p>\n
18<\/span><\/p>\n
    It is not disputed that the decision of the Constitution
\nBench  of this Court in the case of Dewan  Bahadur  Ramgopal
\nMills  Ltd. is binding on us. In the light of what  we\thave
\ndiscussed  earlier, we do not feel that it is  necessary  to
\ndirect\tthis  matter to be placed before a larger  Bench  so
\nthat  the  decision in Dewan Bahadur  Ramgopal\tMills  Ltd.,
\ncould  be  reconsidered.  In  fact, in\tthe  case  of  Straw
\nProducts  a  larger Bench of this Court\t did  consider\tthat
\ndecision  and  came to the conclusion that on the  facts  of
\nthat case the decision was correct. In view of this, we fail
\nto  see how any useful purpose would be served by  referring
\nthis  appeal  to a larger Bench. Moreover, problems  of\t the
\ntype  which  have arisen in these cases are  not  likely  to
\nrecur  hereafter  except very rarely. In view  of  this,  we
\nwould  prefer to follow the decision in The Commissioner  of
\nIncome-tax  Hyderabad v. Dewan Bahadur Ramgopal\t Mills\tLtd<\/a>.
\nand the appeal of the assessee must stand dismissed.
\n    Even  apart\t from what we have stated in  the  foregoing
\nparagraph,  we may point out that in the present  case,\t the
\nSaurashtra  Income-tax Ordinance was repealed by Section  13<\/a>
\nof  the\t Finance Act, 1950 and not by any provision  of\t the
\nIndian\tIncome-tax Act<\/a>. As observed in the case of The\tCom-
\nmissioner of Income Tax, Hyderabad v. Dewan Bahadur Ramgopal
\nMills  Ltd<\/a>.  (at page 326) the basic and  normal  scheme  of
\ndepreciation  under  the Indian Income-tax Act<\/a>\tis  that  it
\ndecreases every year, being a percentage of the written down
\nvalue  which  in the first year is the actual  cost  and  in
\nsucceeding years actual cost less all depreciation  actually
\nallowed under the Indian Income-tax Act<\/a> or any Act  repealed
\nthereby,  etc.\tIn that case, an anomalous  situation  arose
\nbecause the Hyderabad Income-tax Act<\/a> was not repealed by the
\nIndian\tIncome-tax  Act<\/a>\t but by the Finance  Act<\/a>,  1950\t and
\nhence,\ta  difficulty arose in allowing depreciation  to  an
\nassessee  in  Part B State. In the present  case  also,\t the
\nSaurashtra Income-tax Ordinance having been repealed not  by
\nthe  Indian Income-tax Act<\/a> but by Section 13<\/a> of the  Finance
\nAct, 1950, a similar difficulty had come into existence, and
\nhence we fail to see how it can be said that the  Government
\nhad no good basis to come to the conclusion that a difficul-
\nty had. in fact, arisen as contemplated in the case of Dewan
\nBahadur Ramgopal Mills Ltd.\n<\/p>\n
    In the result, the appeal fails and is dismissed. Howev-
\ner,  considering  the facts and circumstances of  the  case,
\nthere will be no order as to costs.\n<\/p>\n
Y.L.\t\t\t\t\t\tAppeal\tdis-\nmissed.\n19<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Maharana Mills Pvt. Ltd vs Income Tax Tribunal, Ahmedabad & … on 3 May, 1989 Equivalent citations: 1989 AIR 1719, 1989 SCR (3) 1 Author: R Pathak Bench: Pathak, R.S. (Cj) PETITIONER: MAHARANA MILLS PVT. LTD. Vs. RESPONDENT: INCOME TAX TRIBUNAL, AHMEDABAD & ORS. DATE OF JUDGMENT03\/05\/1989 BENCH: PATHAK, R.S. (CJ) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-258516","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMaharana Mills Pvt. 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