COMMISSIONER INCOME TAX THE Vs. GIRDHARLAL HARIVALLABHDAS MILLS COMPANY LIMITED

JUDGEMENT

(1.) DESAI C. J. This is a reference under sec. 66(1) of the Indian Income Tax Act 1922 The assessee in this case is Girdharlal Harivallabhdas Mills Co. Ltd. The assessment proceedings relate to the assessment year 1957-58. The business profit for the relevant previous year of the assessee company was determined at Rs. 7 94 272 As against the amount of this profit depreciation and development rebate amounting to Rs. 1 30 529 was set off leaving the income for the previous year from business at Rs. 6 63 743 The assessee had carried forward the toss of Rs. 4 19 95 from the preceding years. After giving a set off for this amount the business income was reduced to Rs. 2 44 648 The assessee had an unabsorbed depreciation of Rs. 5 62 317 in respect of the preceding years. The Income Tax Officer set off the unabsorbed depreciation of the preceding years to the extent of Rs. 2 44 648 leaving a balance of Rs. 3 17 669 as the unabsorbed depreciation for carry forward purposes. The assessee had also income falling under the head income from property which was determined at Rs. 5 614 The Income Tax Officer assessed the assessee on a total income of Rs. 5 614 The assessee appealed against the decision of the Income Tax Officer. The Appellate Assistant Commissioner held that by virtue of the provisions contained in sec. 10(2)(vi) the unabsorbed depreciation of the preceding years was to be treated as a part of the depreciation allowance for the year in question. He therefore permitted the amount of unabsorbed depreciation to be set off also against the income from property amounting to Rs. 5 614 leaving a balance of Rs. 3 12 55 as the unabsorbed depreciation for carry forward purposes. The matter was carried further to the Income Tax Appellate Tribunal. The Tribunal upheld the decision of the Appellate Assistant Commissioner whereupon the Commissioner of Income Tax Gujarat applied to the Income Tax Appellate Tribunal for a reference under sec. 66(1). Thereupon the Income Tax Tribunal has raised the following question and referred the same for our decision :- -

(2.) The Commissioner of Income Tax had desired that the question should be framed slightly differently. The question as required to be raised by the Commissioner was the following ;

(3.) The learned Advocate General who appears on behalf of the Commissioner has asked us to consider whether we should reframe the question as suggested by the Commissioner of Income Tax. In our view what is sought to be done by the Commissioner is to emphasise a factor which will have to be borne in mind in answering the question. We will bear the factor in mind but it is not necessary for the purpose of clearly bringing out the point at issue to alter the question as framed.