(a) Income-tax--

----Depreciation---Scientific research- --Capital assets acquired for purposes of scientific research---Cost of assets written off under S. 35---Not entitled to depreciation---Indian Income Tax Act, 1961, Ss.32 & 35.

Before the 1980 amendment, the Indian Income Tax Act, 1961, did not permit a deduction for depreciation in respect of the cost of a capital asset acquired for purposes of scientific research to the extent that such cost had been written off under section 10(2)(xiv) of the 1922 Act or under section 35(1) and (2) of the 1961 Act, and there was no difficulty at all. in the interpretation of the provisions. The 1980 amendment has effected no change at all in the provisions except to set out more clearly and categorically what the provisions said even earlier.

Escorts Ltd. v. Union of India (1993) 199 ITR 43 (SC) fol.

(b) Income-tax---

----New industrial undertaking---Special deduction---Computation of capital---Borrowed moneys and debts have to be excluded---Indian Income Tax Act, 1961, S.80-J.

Borrowed moneys and debts are required to be excluded while computing capital employed while considering the claim of the assessee under section 80-J of the Income Tax Act, 1961.

Lohia Machines Ltd. v. Union of India (1985) 152 ITR 308 (SC) fol.

J.P. Shah for the Assessee.

M. J. Thakore instructed by M_R. Bhatt of Messrs R.P. Bhatt and Co. for the Commissioner.

JUDGMENT

G.T. NANAVATI, J.---The Income-tax Appellate Tribunal7has, under section 256(1) of the Income-tax Act, 1961, referred question No.l at the instance of the assessee and question No.2 at the instance of the Revenue for the opinion of this Court. The said questions are as under:

"(1) Whether, on the facts and in the circumstances of the case, the assessee is entitled to depreciation of Rs.9,713 on the written down value of building and plant used for research relating to the business of the company?

(2) Whether, while computing the capital employed for the purpose of relief under section 80-J, debts and liabilities are required to be deducted?"

The points which arise for our consideration are covered by decision of the Supreme Court in Escorts Ltd. v. Union of India (1993) 199 ITR 43. The Supreme Court has held that (headnote):

"Before the 1980 amendment, the 1961 Act did not permit a deduction for depreciation in respect of the cost of a capital asset acquired for purposes of scientific research to the extent that such cost had been written off under section 10(2)(xiv) of the 1922 Act or under section 35(1) and (2) of the 1961 Act, and there was no difficulty at all in the interpretation of the provisions. The 1980 amendment has effected no change at all in the provisions except to set out more clearly and categorically what the provisions said even earlier."

In view of the said decision of the Supreme Court, question No.1 will have to be answered in the negative, this is, against the assessee and in favour of the Revenue.

In Lohia Machines Ltd. v. Union of India (1985) 152 ITR 308, the Supreme Court has held that borrowed moneys and debts are required to be excluded while computing capital employed while considering the claim of the assessee under section 80-J of the Act. Therefore, question No.2 will have to be answered in the affirmative, that is, in favour of the Revenue and against the assessee. The reference is disposed of accordingly with no I8 order as to costs.

M.BA./168/T.F

Order accordingly.