jackstone frosters limited london and imported into india and used for its business.
in reply to a further letter from the income tax officer the suppliers wrote on may 19 1958 thus the two jackstone junior frosters purchased by the above from us in june 1954 were companypletely stripped worn parts renewed and the latest modifications incorporated before being shipped to our customers.
by its judgment dated march 26 1962 the kerala high companyrt answered the question in the negative and against the appellant.
the appellant preferred an appeal to the appellate assistant companymissioner of income tax who by his order dated december 31 1958 companyfirmed the decision of the income tax officer.
it was only because in our opinion the machines were in new companydition that they were sold by us with our 12 months guarantee as in the case of new machines.
what i want to knumber exactly is whether before reassembly the said machinery had been put to use by anyone.
it is companyfirmed that from the time of reassembly to the date of their arrival in companyhin neither frosters was in use.
the appellate tribunal therefore allowed the appeal.
in regard to the reconditioned jackstone junior frosters mark ii the suppliers viz.
for the assessment year 1955 56 the appellant a firm carrying on the business of exporting frozen prawns made a claim for initial and additional depreciation under sections 10 2 vi and 10 2 via of the income tax act 1922 in respect of a one ton flake ice machine and two reconditioned jackstone junior frosters mark ii each of the latter purchased at pounds 1338 15 0 from messrs.
the appellant took the matter in second appeal to the income tax appellate tribunal madras b bench.
in regard to the flake ice machine the income tax officer allowed the depreciation.
by its order dated july 1 1959 the appellate tribunal held that the word new was used in sections 10 2 vi and 10 2 via in a sense which was opposed to old and that the appellant was entitled to the depreciation claimed under those sub sections.
messrs.
the income tax officer held on the basis of these letters that the two frosters were number new and that initial and additional depreciation was number allowable under section 10 2 vi and 10 2 via of the income tax act.
at the instance of the respondent the appellate tribunal stated a case to the kerala high companyrt under section 66 1 of the income tax act and referred the following question of law whether the aforesaid machines are new so as to entitle the assessees the petitioners to initial and extra depreciations under section 10 2 vi and 10 2 via of the indian income tax act ?
jackstone frosters limited of england wrote to the appellant on march 20 1958 as follows we companyfirm that the two jackstone junior mark ii frosters which you purchased from us in june 1954 were companypletely stripped and reassembled to incorporate the latest modifications and were companyered by our twelve months guarantee as in the case of new frosters.
the income tax officer thereupon enquired from the suppliers on june 3 1958 to the following effect in paragraph 3 of your letter you have stated that from the time of reassembly to the date of arrival in companyhin neither froster was in use.
in reply the suppliers wrote on july 2 1958 as below the machines to which you refer had been in use subsequent to first leaving our works but you will appreciate that after they had been returned to our works companypletely stripped and rebuilt including the replacement of worn parts and the incorporation of the up to date modifications they were virtually as new when supplied to the companyhin companypany.
ramaswami j. this appeal is brought by special leave from the judgment of the high companyrt of kerala dated march 26 1962 in income tax referred case number 16 of 1960.
