SABYASACHI MUKHARJI, J.

( 1 ) IN this reference under Section 256 (1) of the I. T. Act, 1961, the following question has been referred to this court:"whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that depreciation under Section 32 (1) (ii) of the Income-tax Act, 1961, read with Rule 5 of the Income-tax Rules, 1962, was not admissible @ 100% on coal tubs of the value of Rs. 12,85,132, on winding ropes of the value of Rs. 32,663 and on safety lamps of the value of Rs. 1,19,565 ?"

( 2 ) IN order to appreciate this question, we have to refer to certain facts. It appears from the order of the ITO that for the assessment year the assessee claimed 100% depreciation on coal tubs, cap lamps and haulage ropes. The contention of the assessee can best be appreciated in the words of the ITO, which are as follows:"during the year the assessee claimed 100% depreciation on coal tubs, cap lamps and haulage ropes. Prior to the amendment of Rule 5, these assets were not considered as depreciable assets. Only the value of replacement and renewal is allowed as revenue charge. The assessee's claim for 100% depreciation on the said assets is unacceptable o

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