TMI Blog1999 (7) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... year on the basis of double and triple shifts worked by the concern as a whole ? 2. Whether, on the facts and in the circumstances and having regard to the provisions of section 3(4) of the Income-tax Act, the Tribunal is correct in law in holding that the depreciation for 15 months should be allowed notwithstanding the fact that the assessee consented for allowance of depreciation for 12 months at the assessment stage?" In so far as the first question of law that is referred to us for our consideration is concerned, the issue raised is covered against the Revenue by a decision of the Supreme Court in South India Viscose Ltd. v. CIT [1997] 227 ITR 286 wherein the apex court has held that the assessee would be entitled to extra-shift al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment of tax for the assessment year 1980-81, in so far as the claim of depreciation is concerned, it would be confined only for a period of one year--12 months. The assessee, by a letter dated November 30, 1979, accepted all the conditions imposed by the Income-tax Officer and in this regard it stated as follows: "We were also advised that the depreciation for one year only is admissible against the income of fifteen months and we have already stated that we would agree for this condition in our letter dated November 20, 1979." The Income-tax Officer, accordingly, granted the permission to vary the previous year as prayed for by the assessee since the assessee accepted all the conditions which the Income-tax Officer had imposed. The I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. The Revenue carried the matter by way of appeal before the Appellate Tribunal. The Appellate Tribunal also confirmed the view of the Commissioner (Appeals) on the ground that the Income-tax Officer cannot impose conditions which are not in consonance with the provisions of the Act and the Income-tax Officer could not have denied the change of the previous year, even if the assessee has not accepted the conditions. In this view of the matter, the Appellate Tribunal confirmed the order of the Commissioner (Appeals) and dismissed the appeal preferred by the Revenue. Mr. C. V. Rajan, learned counsel for the Revenue, submitted that the assessee has accepted the condition for the change of the previous year that the depreciation would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as it is relevant for the purpose of this case, rule 5(1) reads as under : "Subject to the provisions of sub-rules (2) and (3), the allowance under clause (i) or clause (ii) of sub-section (1) of section 32 in respect of depreciation of buildings, machinery, plant or furniture or the allowance under clause (i) of sub-section (1A) of section 32 in respect of depreciation of any structure or work referred to in that sub-section shall be calculated at the percentages specified in the second column of the Table in Part 1 of Appendix I to these rules on the actual cost or, as the case may be, the written down value of such of the assets aforesaid as are used for the purposes of the business or profession of the assessee at any time during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the eye of law. Though the assessee had accepted such a condition at the time of change of the previous year, since the condition is against the provisions of the Income-tax Act, we are of the view that it is still open to the assessee to challenge the same on the ground that the condition imposed was in contravention of law as there can be no estoppel against the provisions of the statute. The said position is well-settled by the decision of the Allahabad High Court in J. K. Synthetics Ltd.'s case [1976] 105 ITR 864, wherein the Allahabad High Court held that the condition for the change of the previous year must be valid, legal and reasonable and the Income-tax Officer cannot impose such-conditions which are contrary to the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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