The ITO cannot grant depreciation allowance if the assessee has not claimed it, and the original returns cannot be considered if revised returns have been filed.

Rajendra Nath Mittal, J.

1. This judgment will dispose of Income-tax Reference Cases Nos. 67 to 71 of 1977. The references have been made under Section 256(1) of the I.T. Act, 1961, by the Income-tax Appellate Tribunal, Chandigarhi for opinion of this court.

2. The facts are that the five references are in respect of four assessment years, that is, from 1968-69 to 1971-72. These arise out of the consolidated order passed by the Income-tax Appellate Tribunal, Chandigarh Bench (hereinafter referred to as "the Tribunal"), in eight cross-appeals, four by the Revenue (namely, I.T.A. Nos. 323 to 326) and four by the assessee (namely, I.T.A. Nos. 336 to 339) of 1974-75. The Revenue withdrew three of its appeals, namely, I.T.A. Nos. 323 to 325 relating to the assessment years 1968-69 to 1970-71, respectively. The fourth appeal of the Revenue (namely, I.T.A. No. 326) for the assessment year 1971-72 was accepted. All the four appeals filed by the assessee were dismissed. The assessee filed five reference applications, four from the appeals filed by it, namely (R.A. No. 143 to 145 and 142 of 1976-77), and the fifth (namely, R.A. No. 146 of 1976-77) from the appeal filed by the Revenue. The Tribunal consolidated all the five reference applications and drew a consolidated statement of the case.

3. The assessee-company in its original returns claimed depreciation of Rs. 6,20,463, Rs. 4,26,198, Rs. 5,48,837 and Rs. 12,94,820 and extra shift allowance of Rs. 1,47,945, Rs. 24,449, Rs. 1,35,252 and Rs. 35,601, for the assessment years 1968-69, 1969-70, 1970-71 and 1971-72, respectively. Later, it filed revised returns for all the above years in which it withdrew the claim for depreciation and the extra shift allowance claimed in the original returns. It was urged before the ITO that it was the sweet will of a taxpayer either to claim or disclaim depreciation allowance and there was no statutory sanction behind such claim being enforced on the assessee. The ITO was, however, of the opinion that it was statutorily binding on him to compute the total income which must take into consideration deductions of depreciation allowance. Similar was the case with regard to the assessees claim of extra shift allowance. He made the assessments giving deductions on account of the depreciation allowance and the extra shift allowance.

4. On appeal by the assessee, the Appellate Assistant Commissioner upheld the view of the ITO. On further appeal by the assessee, the Tribunal, relying on Allahabad Glass Works v. CIT [1961] 42 ITR 439 (All), and Ascharajlal Ram Parkash v. CIT [1973] 90 ITR 477 (All), held that the assessees contention that it was the sweet will of the taxpayer to claim or not to claim depreciation depending upon his convenience must be rejected. Similarly, it also rejected the assessees contention regarding extra shift allowance. Consequently, the following question has been referred in R.A. Nos. 143 to 145 and 142 of 1966-67 by the Tribunal.

" Whether the Tribunal has been right in law in holding that, on the facts of the case, the Income-tax Officer had no option but to compute and allow depreciation and extra shift allowance to the assessee for the four assessment years ? "

5. In order to determine the question, it will be relevant to refer to Sections 32(1)(ii) and 34(1) of the I.T. Act. Section 32(1)(ii), inter alia, provides that in respect of depreciation of buildings, machinery, plant or furniture owned by the assessee and used for the purpose of business or profession, deduction of such percentage on the written down value thereof as may in any case or class of cases be prescribed, shall be allowed. Section 34(1) provides that the deductions referred to in Sub-section (1) of Section 32 shall be allowed only if the prescribed particulars have been furnished. In the present case, admittedly, the petitioner had claimed deductions on account of depreciation in its returns in the first instance. However, later, it filed revised return