ORDER
BY THE COURT :
This petition has been filed under [SECTION] of the [ACT] (hereinafter referred to as the Act), for issuing a direction to the Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as the Tribunal), to refer the following question of law for the opinion of this Court :
"Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in upholding the decision of CIT(A) allowing full depreciation, when the AO while passing order under [SECTION] imposed condition that depreciation allowance for the asst. yr. 1984-85 will be restricted to 7/12 of the admissible amount of depreciation and the assessee did not challenge the same in appeal ?"
2. Petition filed under [SECTION] of the Act has been declined by the Tribunal. Accounting period of the assessee-company upto the asst. yr. 1983-84 ended on 30th November. Assessee made an application for change of its accounting period from 30th November to 30th June. AO allowed the change vide order dt. 30th Dec., 1982 and that is how the accounting period for the year relevant to asst. yr. 1984-85 was from 1st Dec., 1982 to 30th June, 1983 i.e. for a period of 7 months. The AO imposed a condition that depreciation allowance for the year 1984-85 will be restricted to 7/12 of the admissible amount of depreciation. Assessee did not challenge the order dt. 30th Dec., 1982 in any other proceedings.
3. During the course of assessment proceedings for the asst. yr. 1984-85, the AO restricted the claim of depreciation to 7/12 as the admissible amount of depreciation. Assessee preferred an appeal. In appeal, it was held that in view of [SECTION] of the [ACT], assessee was entitled to full depreciation instead of 7/12. Further, appeal filed by the Revenue was dismissed by the Tribunal. Tribunal relied upon a judgment of the Gujarat High Court in [PRECEDENT] and [PRECEDENT], a judgment of the Allahabad High Court.
4. Reference application filed under [SECTION] of the Act by the Revenue was dismissed by the Tribunal holding that the decision was arrived at by the Tribunal relying upon the judgments in VXL India Ltd.s case (supra) and J. K. Synthetics Ltd.s case (supra), given by the Gujarat and Allahabad High Courts respectively, and that of a Supreme Court judgment in [PRECEDENT].
5. So far as the judgment of the Supreme Court in [PRECEDENT] case (supra) is concerned, the same is not directly on the point in issue. The other two judgments are of the Gujarat and Allahabad High Courts. The question which has been claimed by the Revenue is a question of law, which has been declined by the Tribunal in the absence of a binding precedent either of the apex Court of the country or of the jurisdictional Court. If there is no binding precedent of the Supreme Court or of the jurisdictional High Court, then the Tribunal could not decline to refer a question of law.
6. For the reasons stated above, we are inclined to agree with the Revenue that the question of law does arise from the facts and circumstances of this Case. Accordingly, we direct the Tribunal at Chandigarh to refer the question of law already reproduced in the earlier part of the judgment to this Court for opinion along with the statement of the case. No costs.