1 itxa4121-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.4121 OF 2010 Cello Pens & Stationary Pvt. Ltd. ..Appellant. V/s. Jt. Commissioner of Income Tax, Vapi & Anr. ..Respondents. Mr. A.K. Jasani for the appellant. Mr. Vimal Gupta for the respondent. CORAM : J.P. DEVADHAR AND A.A.SAYED, JJ. DATED : 19TH JULY, 2011 P.C. :- 1. Heard. Admit on the following reframed question of law :- " Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in applying the decision of the Bombay High Court in the case of Plastiblends India Ltd. V/s. Addl. CIT [318 ITR 352 (Bom) (FB)] to the facts of the present case even though there was no dispute that the appellant himself had claimed depreciation during the year under consideration and the issue involved in the appeal before it was at to what should be the opening written down value for determining depreciation for the year under consideration when in the earlier years the appellant had opted to not to claim depreciation for that years, that is, whether notional depreciation for earlier years should be taken into consideration in determining the opening written down value though not allowed in such years ? " 2 itxa4121-10 2. Counsel for the parties state that the question before the ITAT related to the opening written down value for the purposes of depreciation and not allowability of depreciation. It appears that erroneously counsel for the assessee erroneously conceded that the issue is covered by the Full Bench judgment of this Court in Plastiblends India Ltd. V/s. Addl. CIT reported in 318 ITR 352 (Bom) (FB). 3. Since the question raised by the assessee before the ITAT has not been answered, we quash and set aside the decision of the ITAT and restore the matter back to the file of ITAT for fresh consideration in accordance with law. 4. The appeal is disposed off accordingly with no order as to costs. (A.A. SAYED, J.) (J.P. DEVADHAR, J.)