SESHASAYEE PAPER & BOARDS LIMITEDversusDEPUTY COMMISSIONER OF INCOME TAX

               . II     [2015) 7 S.C.R. 1054


A           SESHASAYEE PAPER &BOARDS LIMITED
               ,..,;
                                   v.
           DEeUTY COMMISSIONER OF INCOME TAX

                (Civil Appeal Nos.1812-1813of2005)
B
                            MAY 15, 2015
                          MARCH

               [A.K. SIKRI AND R. F. NARIMAN, JJ.]

c        Income Tax Act, 1961- s. 32- Unabsorbed Depreciation
    - Whether the unabsorbed depreciation should be allowed
    before the allowance of the unabsorbed investment allowance
    in computing income of the assessee for the Assessment
    Year 1991-1992, when assessee had not claimed the
o unabsorbed 'depreciation in its income-tax return though it
  had claimed depreciation for the current year- Held: By legal
  fiction unab$orbed depreciation becomes depr:eciation of the
  year in question and gets added to the depreciation of the
  current y.ear - Once the unabsorbed carried forward
E depreciation .becomes part of the depreciation of the current
  year; it is no{ open to assessee to bifurcate the two again and
  claim depreciation of the current year and take a position
  that since unabsorbed depreciation of the previous years is
  not claimed,Jt
               ... ' ..
                ~
                        cannot be thrusted upon the assessee - Once
F depreciation is claimed and while giving deductions the
  depreciatio11.~ to be set off against the profits of the current
  year prior   Jg       the unabsorbed carried forward investment
  allowance.
G       DismissinB the appeals, the Court
       HELD: 1.1 By legal fiction unabsorbed depreciation
    becomes depreciation of the year in question and gets

H                               1054
   SESHASAYEE PAPER & BOARDS LTD. v. DEPUTY                  1055
           COMMNR. OF INCOME TAX

added to the depreciation of the current year. If that be        A
so, is it the right of the assessee to partly invoke the
provisions of Section 32 when it comes t<?,~~.~reciation
of the current year and still claim that it has th'e right not
to claim unabsorbed depreciation allowance? On a plain
reading of Section 32, it does not appear to be the              B
position. Once the entire depreciation, namely,
unabsorbed depreciation allowance of the previous year
gets merged into the depreciation of the current year, it
would become an integral part thereof. Legal fiction
makes it one whole thereby making it possible to the             C
assessee to claim set off of unabsorbed carried forward
depreciation as well. A fortiorari, bifurcation thereof with
option to claim depreciation of current y'·"r .only and
contending at the same time that portion o(u~absorbed
                                                                 0
carried forward depreciation is not to be thrusted
                                                ,..,     upon
him as it is not claimed, would not be permissible. [Para
                                                \-~·

19) (1067-F-H; 1068-A-B]                          t~ ~·

    1.2 Once the unabsorbed carried'e+orward
depreciation has become a part of the depreciation of            E
the current year, it is not open to the assessee't'o bifurcate
the two again and exercising its choice t'o claim the
depreciation of the current year under Section 32(1) of
the Act and take a position that since unabsorbed                F
depreciation of the previous years is not claimed, it
cannot be thrusted upon the assessee. THe position
would have been different if the assessee had not
claimed any depreciation at all. However, once the
depreciation is claimed and while giving deductions the          G
depreciation is to be set off against the profits of the
current year prior to the unabsorbed carried forward
investment allowance, it is the entire depreciation,
namely, the depreciation of the current year as well as
the unabsorbed carried forward depreciation, which is            H
1056       SUPREME COURT REPORTS                 [2015) 7 S.C.R.


 A to be taken into account as by virtue of the fiction created
  . under Section 32(2) of the Act, carried forward
    depreciation also partakes the character of depreciation
    of the current year. This scrambled egg cannot be
    unscrambled now. Otherwise, it would amount to
 B negating the legal fiction that is created by the said
    provision, even to the limited extent. In fact, the case falls
    within the ambit of the said limited extent of legal fiction .
    and gets covered by it. [Para 22].£1071-F-H; 1072-A-C]

 C      1.3 Once the provision is read in the aforesaid
   manner, the aid of other interpretative tools which is
   sought to be taken by the counsel for the assessee,
   namely, the provision 1s to be given liberal construction;
   the scheme of the Act envisages giving preference in
 D the matter of deduction from income to those expiring
   by afflux of time, etc. would become irrelevant and pales
   into insignificance. [Para 23] [1072-D-E]

        Commissioner of Income Tax v. Coromandel Steels
 E (1981) 130 ITR 856; Ram Nath Jindal & Anr. v.
   Commissioner of Income Tax (2001) 252 17R 590; Guindy
   Machine Tools P Ltd. v. Commissioner of Income Tax (2002)
   254 ITR 7801; Commissioner of Income-Tax v. Mahendra
   Mills (2000) 243 ITR 56; Commissioner of Income- Tax,
 F Kanpur v. Mother India Refrigeration lndustnes P Ltd. (1985)
   155 ITR 711 - referred to.

                         Case Law Reference

        (1981) 130 ITR 856        referred to.       Para 5
G
        (2001) 252 ITR 590        referred to.       Para 9

        (2002) 254 ITR 780 ·      referred to.       Para 9

 H      (2000) 243 ITR 56         referred to.       Para 9
   SESHASAYEE PAPER & BOARDS LTD. v. DEPUTY                1057
           COMMNR. OF INCOME TAX

   (1985) 155 ITR 711         referred to.    Para 20         A

   CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
1812-1813of2005.

     From the Judgment and Order dated 15.09.2004 of the B
Division Bench of the High Court of Judicature at Madras in
T.C (Appeals) Nos. 300/2001 and T.C. No. 41/2002.

    WITH
    CA No. 4498/2015                                          c
   Dr. Anitha Suman, Pratap Venugopal, Supriya Jain,
Gaurav Nair, K.J. John & Co. for the Appellant.

   K. Radhakrishnan, A. K. Srivastava, D.L. Chidanand, D
Sadhana Sandhu, Anil Katiyar, B.V. Balaram Das for the
Respondent.

    The Judgment of the Court was delivered by

     A.K. SIKRI, J. 1. Leave granted in Special Leave Petition E
(Civil) No. 15251 of 2008.

     2. Facts, as they appear in Civil Appeal Nos. 1812-1813
of 2005, are taken note of as the following substantial question
of law, which arises for consideration, is common in these F
appeals:

    "Whether on the facts and in the circumstances of the case,
    the Income Tax Appellate Tribunal is right in holding that ·
    the unabsorbed depreciation should be allowed before G
    the allowance of the unabsorbed investment allowance in
    computing income of the appellant/assessee for the
    Assessment Year 1991-1992, when the assessee had not
    claimed the unabsorbed depreciation in its income-tax
    return though it had claimed depreciation for the current H
1058          SUPREME COURT REPORTS                  [20'15] 7 S.C.R.


 A          year?

            3. The aforesaid question has arisen for consideration in
       the following set of facts:
         4. The appellanUassessee is a public limited company
 B engaged in the business of manufacturing paper. It had filed
   its return under Section 139 of the Income Tax Act, 1961 (for
   short, the 'Act') for the Assessment Year 1991-92 declaring
   its income as 'Nil'. In fact, the income for that year after showing
   exemptions, deductions and additions, which are to be made
 C in terms of Sections 28 onward relating to computation of the
   business income, was arrived at 2,87, 15,912. The assessee
   had unabsorbed investment allowance of previi0us years. It
   also had unabsorbed depreciation of the earlier years. In its
   income-tax return, however, it chose to carry forward investment
 0
   allowance and claimed set off of the said unabsorbed
   investment allowance to the extent of 2,87, 15,912, thereby
   showing the returned income as 'Nil'. According to the
   Assessing Officer, it was not the investment allowance, but
 E unabsorbed depreciation of the earlier years which had to be
   set off first by giving priority to the unabsorbed depreciation.
   Therefore, instead of allowing the assessee to carry forward
   investment allowance, the Assessing Officer adjusted the
   unabsorbed depreciation of the earlier years, namely 1983-
 F 84, 1985-86, 1986-87 and 1987-88 (part), and accepted 'Nil'
   income return as filed by the assessee, but on the aforesaid
   basis.
      5. The assessee, however, was not satisfied with the
  aforesaid treatment of setting off of the unabsorbed
G depreciation instead of investment allowance. It filed appeal
  before the Commissioner (Appeals). This appeal was,
  however, dismissed following the judgment of the Madras High
  Court in Commissioner of Income Tax v. Coromandel
H Stee/s 1 • The assessee approached the Tribunal. The
       1 (1981) 130 ITR 856
                      '                           ,(
   SESHASAYEE PAPER & BOARDS LTD. v. DEPUTY                  1059
      COMMNR. OF INCOME TAX [AK. SIKRI, J.]

Tribunal also confirmed the order of the Commissioner A
(Appeals). The assessee, still not satisfied, approached the
Madras High Court. Even the High Court, vide impugned
judgment dated September 15, 2004, has affirmed the view
taken by the authorities below and dismissed the appeal of
the assessee. As the grievance still persists, the present B
appeal questions the treatment given to the income-tax return
in the manner mentioned above, which has come up for
consideration after special leave to appeal was granted.

    6. It is in this backdrop the question of law, which is to   c
be answered and formulated above, relates to the issue as
to whether it is unabsorbed investment allowance which is to
be allowed as set off in computing the income of the
assessee for the assessment year in qLJestion or unabsorbed
depreciation.                                                    D

     7. As pointed out above, in the income-tax return the
assessee had claimed set off of unabsorbed investment
allowance. However, this request is declined as according
to the High Court, provisions of Section 32 of the Act mandate   E
that precedence has to be given to unabsorbed depreciation
before allowing unabsorbed investment allowance.

     8. The plea of the assessee before the High Court was
that in the absence of any claim by the assessee towards F
depreciation allowance, the assessing authority could not
erroneously assume that such a claim would be untenable
under the provisions of the Act and could not thrust the
deduction of carrying forward depreciation allowance, when
the assessee had chosen to have set off of unabsorbed G
investment allowance and it is the assessee whose option
should prevail. It was alsQ argued that even if the provision
of law was not very clear and was susceptible to two

                                                                 H
1060         SUPREME COURT REPORTS                 (2015] 7 S.C.R.


 A interpretations, one which was more beneficial to the
   assessee had to be given effect to.

           9. The High Court took note of these contentions of the
      assessee predicated on the judgment of the Punjab and
 B    Haryana High Court in Ram Nath Jindal & Anr. v.
      Commissioner of Income Tax2, in which the said High Court
      held that the Assessing Officer could not grant the depreciation
      allowance when it was not claimed by the assessee as there
      is no provision by which depreciation could be fictionally
 C   deemed to have been claimed and granted: It would be
      pertinent to point out that this judgment of the High .Court was
      in the light of Section 32 of the Act which stood atthe material
     time and this very provision existed even in respect of
     Assessment Years 1991-92 and 1992-93 with which we are
 D   concerned. Therefore, the High Court took cognizance of the
     said judgment. The High Court also noted another judgment .
     of its own Court in Guindy Machine Tools P. Ltd. v.
     Commissioner of Income Tax 3 , which had followed
     judgment of this Court in Commissioner of i'ncome-Tax v.
 E   Mahendra Mi/ls4 wherein it was held that the provision in
     respect of depreciation was for the benefit of the assessee
     and if the assessee does not wish to avail the said benefit for
     some reason, it could not be forced upon him. Notwithstanding
 F   the aforesaid judgments, the High Court observed that the real
     issue was not whether the assessee could be compelled to
     claim depreciation, but, if he fails to claim, what would be the
     order of priority between unabsorbed depreciation allowance
     and unabsorbed investment allowance. On this purported 'real'
G    issue, the High Court mentioned that since unabsorbed
     depreciation allowance gets precedence over the unabsorbed
     investment allowance under the provisions of the Act, which
     2 (2001) 252 ITR 590
     3 (2002) 254 ITR 780
H    4 (2000) 243 ITR 56
   SESHASAYEE PAPER & BOARDS LTD. v. DEPUTY                      1061
      COMMNR. OF INCOME TAX [A.K. SIKRI, J.]

has been held by various High Courts (and those judgments. A
of the High Courts are taken note of), it is the unabsorbed
depreciation allowance which would be set off first.

     10. Arguments before us remain the same which were
advanced by the assessee as well as the Revenue in the High B
Court. In order to appreciate these arguments and to answer
the controversy which has arisen, it is apposite to take note of
provisions of Section 32 of the Act, as existed at the relevant
time. The portion with which we are concerned reads as under:
                                                                     c
    "32. (1) In respect of depreciation of buildings, machinery,
    plant or furniture owned by the assessee and used for the
    purposes of the business or profession, the following
    deductions shall, subject to the provisions of section 34,
    be allowed-                                                  D

    xx        xx             xx
    (2) Where, in the assessment of the assessee [(or, ifthe
    assessee is a registered firm or an unregistered firm
    assessed as a registered firm, in the assessment of its          E
    partners)] full effect cannot be given to any allowance
    [under clause (ii) of sub-section (1 )] in any previous year,
    owing to there being no profits or gains chargeable for
    that previous year, or owing to the profits or gains             F
    chargeable being less than the allowance, then, subject
    to the provisions of sub-section (2) of section 72 and sub-
    section (3) of section 73, the allowance or part of the
    allowance to which effect has not been given, as the case
    may be, shall be added to the amount of the allowance for        G
    depreciation for the following previous year and deemed
    to be part of that allowance, or if there is no such allowance
    for that previous year, be deemed to be the allowance for
    that previous year, and so on for the succeeding previous
    years."                                                          H
1062         SUPREME COURT REPORTS                  [2015) 7 S.C.R.


 A         11. This Section deals with depreciation in respect of
   certain assets which are mentioned in sub-section (1) of
   Section 32 and owned wholly or partly by the assessee and
   used for the purpose of business or profession. The nature of
   deductions that is to be allowed is also mentioned in sub-
 B section (1 ). We are not directly concerned with this provision
   inasmuch as it is not in dispute that the assessee herein was
   entitled to depreciation on its assets and the amount of
   depreciation is also not in dispute. As mentioned above, in
   fact, the depreciation of earlier orders could not be utilized by
 C the assessee in those years. Since the provisions of the Act
   permit the assessee to accumulate the unabsorbed
   depreciation of the previous years with right to the assessee
   to choose the same in subsequent years, the assessee herein
   had unabsorbed depreciation of the previous years. This is
 0
   so stipulated in sub-section (2) of Section 32., which has
   already been noted earlier.

        12. As per the aforesaid provision, the depreciation
   allowance or part thereof to which effect has not been given in
 E a particular assessment year owing to there being no profits
   or gains chargeable for that previous years or owing to profits
   and gains chargeable being less than the allowance, such
   unabsorbed depreciation allowance is to be added to the
 F amount of the allowance for depreciation for the following
   previous year and it is 'deemed to be part of that allowance
       for that previous year or the succeeding previous years, as
       the case may be'. This is, however, subject to the provisions
   of sub-section (2) of Section 72 and sub-section (3) of Section
 G 73 of the Act.
       13. What follows from the above is that in case of loss in
   the business income or insufficient profits to absorb the
   depreciation allowance permitted by this Section, because of
 H which reason depreciation allowance or some part thereof
   remains unabsorbed, it may be carried forward under this sub-
   SESHASAYEE PAPER & BOARDS LTD. v. DEPUTY                      1063
      COMMNR. OF INCOME TAX [AK. SIKRI, J.]

section to the following year and set off against that year's        A
profit, and so on for succeeding years. There is an amendment
in the aforesaid provision with effect from April 01, 1996, which
shall be taken note of subsequently at an appropriate stage.
However. as per the provision which existed during the relevant
period and extracted above, the carried forward depreciation         B
allowance is deemed to be a part of, and stands on exactly
the same footing as the current depreciation for the assessment
year. The unabsorbed depreciation of the past years, thus, by
legal fiction, becomes the depreciation of the year in question
and can be set off against income chargeable under any head.         C
There is, thus, actual depreciation which is to be calculated in'
that particular assessment year. To this, unabsorbed
depreciation is to be added by the application of aforesaid
deeming provision and this entire depreciation, namely, that         D
of the current year as well as unabsorbed depreciation of the
previ0us years, can be allowed as depreciation in that particular
assessment year or succeeding assessment years. This is
subject to the provisions of Sections 72(2) and 73(3) of the
Act. Section 72 deals with carried forward and set off of            E
business loss under the head 'business or profession'. This
carried forward loss can be set off only against the profits of
any business or profession and is carried forward only for a
period of eight years. On the other hand, insofar as carry
forward of depreciation allowance to any subsequent year is          F
concerned, the same is without any time limit. Sub-section (2)
of Section 72 .stipulates that where any allowance or part
thereof is under sub-section (2) of Section 32 or sub-section
(4) of Section 35 and is to be carried forward, effect shall first
be given to the provisions of this section. Section 73, on the       G
other hand, deals with loss in speculation business and
subsequently mentions that such loss of a speculation business
shall not be set off except against profits and gains, if any, of
another speculation business. Thus, losses of speculation
business can be set off only against profits and gains of another    H
1064         SUPREME COURT REPORTS                   [2015] 7 S.C.R.


 A speculation business and not against profits earned from other
   kinds of businesses. Here sub-section (3) of Section 73, which
   finds mention in Section 32(2), states that provisions of sub-
   section (2) of Section 72 shall also apply in relation to
   speculation business. We are not concerned with the aforesaid
 B situation arising out of sub-section (2) of Section 72 or sub-
   section (3) of Section 73. However, the same are mentioned
   for the purpose of clarity as there is a reference to these
   provisions in Section 32(2). Insofar as the instant case is
   concerned, it depends upon the meaning that is to be given to
 C the deeming provision, as explained above.

        14. Before we discuss this effect, let us take note of some
   of the nuances regarding claim of depreciation allowance,
   which have been laid down by judicial pronouncements on
 D interpretation of this provision.

            15.lt has been the consistent view of the Courts that
       unabsorbed depreciation allowance should be allowed before
       the unabsorbed investment allowance. To put it differently,
 E     unabsorbed depreciation is to be given precedence and is
       allowed to be set off first. Some of the High Courts had earlier
       taken the view that this would be so even if the assessee had
       not claimed the unabsorbed depreciation. It is the necessary
       consequence of the scheme of various provisions of the Act.
 F     Section 32AoftheAct, which deals with investment allowance,
       was inserted by the Finance Act, 1976 with effect from
       01.04.1976. According to Circular No. 202 dated 05.07.1976
       issued by CBDT [(1976) 105 ITR St 17], the combined effect.
       of the provisions of Sections 32, 32A, 33, 33A and 72 is that
 G     in a case where there are allowances in the nature of
       depreciation allowance,
                     ,.            investment allowance, development
       rebate, development allowance and losses, such allowances
       and losses would be deductible in the order given below, in
 H     cases where the profits are insufficient to absorb all of them:
   SESHASAYEE PAPER & BOARDS LTD. v. DEPUTY                     1065
      COMMNR. OF INCOME TAX [AK. SIKRI, J.]

  (i)   Current depreciation (Section 32( 1))                       A

        (ii)     Carried forward losses of earlier years (Section
        72(1))

        (iii) Unabsorbed depreciation of earlier years (Section
                                                                    8
        32(2))

  (iv) Unab~orbed development rebate of earlier years
       (Section 33(2)(ii)

  (v)   Current development rebate (Section 33(2)(i))               C

  (vi) Unabsorbed development allowance of earlier years
       (Section 3A(2)(ii))

  (vii) Current development allowance (Section 33A(2)(ii))
                                                                    D
  (viii) Unabsorbed investment allowance of earlier years
        (Section 32A(3)(ii))

  (ix) Current investment allowance (Section 33A(3)(i))
                                                                    E
      It emerges from sub-section (3) of Section 32A that
unabsorbed investment allowance takes precedence over
current investment allowance. However, this Court in
Mahendra Mills (supra) took the view that since the provision
for depreciation is a benefit which enures to the assessee, if F
the assessee does not wish to avail of that benefit for some
reason, such a benefit cannot be forced upon him. In that case,
the Court held that the language of the provisions of Sections
32 and 34 of the Act is specific and admits of no ambiguity.
Section 32 allows depreciation as deduction, subject to the G
provisions of Section 34. Section 34 provides that deduction
under Section 32 shall be allowed only if the prescribed
particulars have been furnished. It was specifically held that
there is no mandatory duty on the officer to allow depreciation
if the assessee does not want to claim that. The provision for H
1066       SUPREME COURT REPORTS                    [2015] 7 S.C.R.


 A claim of depreciation is certainly for the benefit of the assessee.
   If he does not wish to avail of that benefit for some reason, the
   benefit cannot·be forced upon him. It is for the assessee to
   see if the claim of depreciation is to his advantage. Income
   under the head "Profits and gains of business or Profession"
 B is chargeable to income-tax under Section 28 and income
   under Section 29 is to be computed in accordance with the
   provisions contained in Sections 30 to 43A. The argument
   that since Section 32 provides for depreciation it has to be
   allowed in computing the income of the assessee cannot, in
 C all circumstances, be accepted in view of the bar contained in
   Section 34. If Section 34 is not satisfied and the particulars
   are not furnished by the assessee, his claim for depreciation
   under Section 32 cannot be allowed. Section 29 is, thus, to
   be read with reference to other provisions of the Act. It is not
 0
   in itself a complete code.

        16. This principle, thus, is grounded in the reasoning that
   there is no provision by which depreciation could be fictionally
   deemed to have been claimed and granted and it is to be
 E specifically claimed by the assessee. Further, when claiming
   of depreciation is a privilege given to the assessee, it cannot
   be turned into a disadvantage even when the assessee does
   not claim the depreciation. Therefore, option in this behalf
 F rests with the assessee.
        17. In the impugned judgment as well, the High Court
   accepts the aforesaid legal position as this is so decided by
   this Court in Mahendra Mil/s's case (supra) and is a binding
   precedent. However, the aforesaid judgment is not followed
 G on the ground that real issue is something else. Such an issue,
   though already noted above, is stated in para 10.1 of the
   impugned judgment, which reads as under:

          "10.1 But, in the case on hand, it is not the issue whether
 H        the assessee could be compelled to claim depreciation
   SESHASAYEE PAPER & BOARDS LTD. v. DEPUTY                     1067
      COMMNR. OF INCOME TAX [A.K. SIKRI, J.]

    allowance, but, if he fails to claim, what would be the order A
    of priority between unabsorbed depreciation allowance .
    and unabsorbed investment allowance."

     18. Strangely, the issue is somewhat different, namely,
when the depreciation allowance is not claimed, can it be said B
that the assessee has failed to claim and in that case what
would be the position? According to us, there is no question
of failing to claim. Situation in such an event would be that
depreciation is not claimed at all and, therefore, the position
mentioned in Mahendra Mil/s's case (supra) would follow. C
To this extent we find that it was a wrong question posed by
the High Court, which led to a wrong answer.

     19. However, the matter does not rest there. In the present
case, the assessee in fact claimed the depreciation allowance       D
insofar as it pertained to the current year. At the same time, it
did not want to claim the set off of the unabc;orbed depreciation
allowance of the previous years. In such situation, the question
is as to whether it is open to the assessee to invoke the
provisions of Section 32 of the Act by claiming depreciation of     E
the current year, but at the same time choose not to make a
claim of set off of unabsorbed depreciation allowance of the
previous years. As noted above, by legal fiction unabsorbed
depreciation becomes depreciation of the year in question
and gets added to the depreciation of the current year. If that     F
be so, is it the right of the assessee to partly invoke the
provisions of Section 32 when it comes to depreciation of the
current year and still claim that it has right not to claim
unabsorbed depreciation allowance? On a plain reading of
Section 32, it does not appear to be the position. Once the         G
entire depreciation, namely, unabsorbed depreciation
allowance of the previous year gets merged into the
depreciation of the current year, it would become an integral
part thereof. Legal fiction makes it one whole thereby making       H
1068          SUPREME COURT REPORTS                    [:2015] 7 S.C.R.


 A it possible to the assessee to claim set off of unabsorbed
   carried forward depreciation as well. A fortiorari, bifurcation
   thereof with option to claim depreciation of current year only
   and contending at the same time that portion of unabsorbed
   carried forward depreciation is not to be th rusted upon him as
 B it is not claimed, would not be permissible.

        20. Notwithstanding the above, the endeavour of the
   learned counsel for the assessee is to show that the assessee
   has such a right. In this direction it is argued that though by
 C legal fiction unabsorbed depreciation allowance is carried
   forward to the assessment year in question and becomes a
   part of depreciation allowance of that year, it retains its identity
   inasmuch as it is brought forward only because of deeming
   provision which is to be applied to that limited extent and no
 D further. In order to support this hypothesis, learned counsel
   referred to the judgment in Commissioner of Income-Tax,
   Kanpur v. Mother India Refrigeration Industries P. Ltd. 5
   where nature of carried forward depreciation allowance on
   application of deeming provision is explained by the Court.
 E She specifically referred to the following discussion in this
   behalf:

            "Having regard to the aforesaid rival contentions. it will be
            clear that the real issue that arises for our consideration
 F          in this case is whether, on a proper construction of the
            relevant provisions of the concerned enactment,
            unabsorbed carried forward losses should have
            preference over current depreciation in the matter of set
            off or is the position vice versa while computing the total
 G          income of an assessee in the concerned assessment
            year? And the answer to this question depends on what
            is the true scope and purpose of the legal 1iction created
            under proviso (b) to s. 10(2)(vi) of the 1922Actor unders.
 H     5 (1985) 155 ITR 711
SESHASAYEE PAPER & BOARDS LTD. v. DEPUTY                     1069
   COMMNR. OF INCOME TAX [A.K. SIKRI, J.]

32(2) of the 1961 Act.                                           A

 At the outset, it may be stated that a close scrutiny of the
 relevant provisions of the 1922 Act as also the 1961 Act
 clearly shows that the computation of income under the
 head "Profits and gains of business" of any particular          B
 assessment year is required to be done after making
 certain allowances specified in sub-s.(2) of s. 10 of the
 1922 Act and after allowing certain deductions in
 accordance with the provisions contained in ss. 30 to 43A
 of the 1961 Act; in other words, it is the net profits and      C
gains after the specified deductions are made that are
subjected to tax; one of such deductions pertains to
depreciation allowance at the prescribed rate of
percentage of the written down value of the business asset;
and this is provided in s. 10(2)(vi) of the 1922 Act and in      D
s. 32(1) of the 1961 Act. Up to this stage of computation,
no question of either carry forward of unabsorbed
depreciation of the earlier years or carry forward of
unabsorbed business losses of earlier years arises. In
other words, the normal accountancy principle has to be          E
applied in arriving at the net income from business for
that year by debiting the current year's depreciation. The
question is whether any deviation from this normal rule of
accountancy is contemplated by proviso (b) to s. 10(2)(vi)       F
read with proviso (b) to s. 24(2) of the 1922 Act or by s.
32(2) read withs. 72(2) of the 1961 Act, and it is here that
the aspect of proper construction of these provisions
arises. Dealing with the provisions of the 1922Actfirst, it
will be clear that proviso (b) to s. 10(2)(vi) is in two parts   G
and provides for two things; its first part provides for a
carry forward of unabsorbed depreciation and its second
part provides for clubbing the said carried forward
depreciation with the current year's depreciation and
deeming the aggregate to be the current year's                   H
1070     SUPREME COURT REPORTS                        [2015) 7 S.C.R.


 A     depreciation. However, carrying forward of the
       unabsorbed depreciation and the deeming provision in
       proviso {b) are not absolute but are subject to the proviso
       (b) to s. 24(2). Had proviso (b) to s. 24(2) not been enacted
       by the Legislature, the result would have been that the
 B     aggregate depreciation would have been deducted first
       out of the profits and gains in preference to unabsorbed
       business losses which might have been carried forward
       under s. 24(2) but as such losses can be carried forward
       only for limited number of years, the assessee would in
 c     certain circumstances have in his books losses which he
       might not be able to set off even within the time-limit during
       which the set off is permitted. In order to prevent such a
       situation, the Legislature enacted the proviso (b) to s. 24(2).
       And proviso (b) to s. 24(2) expressly stated "where
 D
       depreciation allowance is, under cl. (b) of the proviso to
       cl. (vi) of sub-s. (2) of s. 10, also to be car1ied forward,
       effect shall first be given to the provisions of this sub-
       section". In other words, it clearly provides that in the matter
 E     of set off, the unabsorbed depreciation that is required to
       be carried forward under proviso (b) to s. 10(2)(vi) and no
       preference over the current depreciation is intended.

       It is true that proviso (b) to s. 10(2)(vi) creates a legal fiction
       and under that fiction, unabsorbed depreciation either with
 F
       or without current year's depreciation is deemed to be
       the current year's depreciation but it is well settled, as
       has been observed by this court in Bengal Immunity
       Company Limited v. State of Bihar [1955] 2 SCR 603,
 G     606; 6 STC 446, that the legal fictions are created only for
       some definite purpose and these must be lih1ited to that
       purpose and should not be extended beyond that
       legitimate field. Clearly, the avowed purpose of the legal
       fiction created by the deemilJ,9 provision contqined in
 H     proviso (b) to s. 10(2)(vi) is to make the unabsorbed
       carried forward depreciation partake the same character
   SESHASAYEE PAPER & BOARDS LTD. v. DEPUTY                     1071
      COMMNR. OF INCOME TAX [A.K. SIKRI, J.]

    as the current depreciation in the following year, so that it A
    is available, unlike unabsorbed carried forward business
    loss, for being set off against other heads of income of
    that year."

      21. It is clear from the above that though the question there s
was different, namely, precedence of carried forward business
loss over the carried forward unabsorbed depreciation or vice
versa, what is important is the interpretation that is given to
Section 32(2) of the Act and particularly the deeming provision
thereof which creates legal fiction. The Court clarified that the C
avowed purpose of the legal fiction created by deeming
provision contained in Section 32(2) of the Act is to make the
unabsorbed carried forward depreciation partake the same
character as the current depreciation in the following year, so
that it is available, unlike unabsorbed carried forward business D
loss for being set off against other heads of income of that
year. On that basis, the Court answered that since unabsorbed
carried forward depreciation had become part of the current
depreciation, the entire depreciation had to be given
preference (current as well as unabsorbed carried forward E
depreciation) over unabsorbed carried forward losses.

     22. We do not understand as to how the aforesaid
judgment helps the assessee. On the contrary, it goes against
the assessee while answering the question which has arisen F
in the instant appeals. Once the unabsorbed carried forward
depreciation has become a part of the depreciation of the
current year, it is not open to the assessee to bifurcate the two
again and exercising its choice to claim the depreciation of
the current year under Section 32(1) of the Act and take a G
position that since unabsorbed depreciation of the previous
years is not claimed, it cannot be thrusted upon the assessee.
The position would have been different if the assessee had
not claimed any depreciation at all. However, once the H
1072          SUPREME COURT REPORTS                 [2015] 7 S.C.R.


 A depreciation is claimed and while giving deductions the
   depreciation is to be set off against the profits of the current
   year prior to the unabsorbed carried forward investment
   allowance, it is the entire depreciation, namely, the depreciation
   of the current year as well as the unabsorbed carried forward
 B depreciation, which is to be taken into account as by virtue of
   the fiction created under Section 32(2) of the Act, carried
   forward depreciation also partakes the character of
   depreciation of the current year. This scrambled egg cannot
   be unscrambled now. Otherwise, it would amount to negating
 C the legal fiction that is created by the said provision, even to
   the limited extent. In fact, the case falls within the ambit of the
   said limited extent of legal fiction and gets covered by it.

        23. Once we read the provision in the aforesaid manner,
 D the aid of other interpretative tools which is sought to be taken
   by the learned counsel for the assessee, namely, the provision
   is to be given liberal construction; the scheme of the Act
   envisages giving preference in the matter of deduction from
   income to those expiring by afflux of time, etc. would become
 E irrelevant and pales into insignificance.

        24. The upshot of the aforesaid discussion is to decide
   the question formulated against the assessee and in favour of
   the Revenue, though for our reasons contained in this judgment.
 F The appeals are, accordingly, dismissed with costs.

       Nidhi Jain                                    Appeals dismissed.