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TMI Blog2007 (10) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... tricted to 50 per cent. of the normal depreciation as the asset had actually worked for only 112 days. The excess depreciation of Rs. 2,57,38,370 should have been disallowed. In that view of the matter, the Commissioner regarded the assessment made on March 29, 1996, as erroneous and prejudicial to the interests of the Revenue. A notice under section 263 of the Income-tax Act was issued and upon hearing the representative of the assessee and on finding that the company commissioned the new unit on September 28, 1992, and the assets worked for 112 days, it was held that as per the second proviso to section 32 of the Act, the assessee was entitled to only 50 per cent. of the normal depreciation. On that reason, the Commissioner of Income-tax set aside the assessment order and directed the Assessing Officer to restrict the depreciation claimed in respect of the machinery pertaining to the VSF-III unit to 50 per cent. 2. The assessee being aggrieved by the order of the Commissioner filed an appeal before the Income-tax Appellate Tribunal which by its order dated December 8, 2002, upheld the order of the Commissioner of Income-tax. The correctness of the said order is canvassed in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent. of the amount calculated at the percentage, on the written down value of such assets, prescribed under this Act immediately before the commencement of the Taxation Laws (Amendment) Act, 1991." 5. In this case, the claim of the assessee for normal depreciation for the block of assets was restricted to 50 per cent. on the ground that such asset was put to use for a period less than 180 days. Hence, the construction of the expression "put to use" employed in the latter part of the second proviso assumes significance. It is axiomatic that in the absence of definition to a word or an expression, which requires construction, the usual course to be adopted is to assign the meaning given to the word or expression in the legal dictionary. Webster's Encyclopaedic Unabridged Dictionary of English language,1989 edition, explains the expression "put to use" as "to apply, employ to advantage". 6. If the expression "put to use" is given the meaning as defined in the dictionary, we are of the view that if the block of assets acquired by the assessee during the previous year is applied or employed for the purpose of business of the assessee in that previous year for 180 days that would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been used by the assessee in his business, profession or vocation during the previous year, (i) for a period of 180 days or more, (ii) for a period of less than 180 days but more than thirty days or, (iii) for a period of thirty days or less than thirty days, respectively." 9. In that case, the Tribunal has taken the view that in terms of the amended rule, in order to get depreciation the asset in question must have been actively used for specified number of days in the business of the assessee. The Tribunal had held that since the bus in question having actually plied by the assessee for less than 30 days during the previous year, the assessee would not be entitled to any depreciation in respect thereof. The Delhi High Court, while considering the issue as to whether the assessee was entitled to depreciation with reference to the amended provision above referred to, relied on the decision of the Bombay High Court in the case of CIT v. Viswanath Bhaskar Sathe [1937] 5 ITR 621, wherein the court held that the assessee was entitled to depreciation notwithstanding that the plant and machinery did not actually work during the previous year in question. The court, while holding so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37] 5 ITR 621 (Bom), Bhikaji Venkatesh v. CIT [1937] 5 ITR 626 (Nagpur), CIT v. Dalmia Cement Ltd. [1945] 13 ITR 415 (Patna), Liquidators of Pursa Ltd. v. CIT [1954] 25 ITR 265 (SC), Machinery Manufacturers Corporation Ltd. v. CIT [1957] 31 ITR 203 (Bom), State of Madras v. Glenburn Estates Ltd. [1962] 44 ITR 643 (Mad), Niranjan Lal Ram Chandra v. CIT [1963] 49 ITR 177 (All). Whittle Anderson Ltd. v. CIT [1971] 79 ITR 613 (Bom), the Delhi High Court in the case of Capital Bus Service P. Ltd. v. CIT [1980] 123 ITR 404, ultimately held that (page 412) "the survey of the decisions on the subject clearly shows that the consensus of judicial opinion is in favour of adopting the liberal interpretation. We are also of opinion that in the context in which the expression occurs and also having regard to the various types of cases that could arise, the wider interpretation has to be placed on this expression. The decided cases, which have been earlier referred to, have arisen in different contexts which clearly indicate that the wider and more liberal interpretation of the provisions would in the context of section 10(2) (vi) and (vii) may be appropriate". The Delhi High Court further observ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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