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4.6 Thus, it is urged that since the issue is squarely covered by the decision of the Supreme Court in the case of Wipro Ltd. (supra), the substantial question of law as formulated in these tax appeals may be allowed in favour of the revenue.

SUBMISSIONS ON BEHALF OF ASSESSEE:

5. Opposing the aforesaid submissions, learned advocate Mr.Soparkar for the respondent, at the outset, has submitted that the Coordinate Bench of this Court, vide order dated 20.06.2011, has upheld the decision of the Tribunal for accepting the revised return and hence once the revised return becomes valid, it partakes the colour of the original return filed under Section 139(1) of the Act and hence it is always permissible for the assessee to again adopt for a fresh methodology.

5.3 Mr.Soparkar, learned advocate for the respondent - assessee, has submitted that under the settled legal fiction governing Section 139(5) of the Act, a revised return does not create a new filing event. It relates back to and substitutes the original return, taking effect from the date of the original filing. It is submitted that second proviso to Rule 5(1A) of the Rules prescribes a condition of eligibility, not a condition of irrevocability. It says that the assessee "may be allowed depreciation under Rule 5(1) / Appendix-I if such option is exercised before the due date." The condition "before the due date" goes to who is eligible to exercise the option, i.e. only those who have filed timely return. It does not say that the choice made in the timely return is permanent and cannot be changed by a valid revised return under Section 139(5) of the Act.

5.8 It is submitted that in the present case, the assessee while filing the original return had claimed depreciation within the due date and hence the valid revised return under Section 139(5) of the Act permits the assessee to adopt a different methodology as it will support the original return under Section 139(1) of the Act. Thus, it is urged that the tax appeals may be dismissed.

The aforesaid judgement has been considered by the Supreme Court in case of Commissioner of Income Tax,Maharashtra vs G.M.Knitting Industries(P) Ltd, (2016)71 taxmann.com35(SC). Thus, for ascertaining the statute as mandatory or directory, the test often adopted is to ascertain whether the object of the Legislature will be defeated or furthered by holding it directory, and in case the object of the enactment is defeated by holding it directory, it should be construed as mandatory whereas if by holding it mandatory, serious general inconvenience will be created to innocent persons without very much furthering the object of the enactment, it should be construed as directory. It is also held that, a balance has to be struck between the inconvenience of rigidly adhering to the requirements and the convenience of sometimes departing from its terms. In the instant case, the assessee claimed depreciation by adopting the SLM on the due date i.e. 31.10.2002 and not thereafter. It is not the case of the revenue that the claim of depreciation is not valid. The statute provides the assessee to opt for change in computation, and such option is to be exercised before the due date as envisaged under section 139(1). It is true that the Rule 5(1A) NEUTRAL CITATION C/TAXAP/1973/2009 CAV JUDGMENT DATED: 09/04/2026 undefined of the Rules does not refer to Section 139(5) of the Act however, the intention of Rule 5(1A) of the Rules cannot be so stringent, which restricts the assessee to change his computation if he carves out a case for filing a valid revised return, and his claim of depreciation is genuine. In case, the revenue does not accept the revised return and finds that it is not premised on any omission or any wrong statement, the question of accepting the change in option does not arise. Hence, while filing the revised return for various claims, the assessee can always change to WDV method. However, the quintessential condition is that the assessee should have claimed the depreciation by exercising the first option as per Appendix IA as required under Rule 5(1A) of the Rules, on or before the due date at the time of filing the original return under Section 139(1) of the Act. The requirement of prescribed calculation for claiming allowance under clause(i) of sub-section (1) of Section 32 of the Act in respect of depreciation of assets is mandatory. Without the requisite computation method as envisaged under the Rule 5(1A) of the Rules, the assessee cannot claim the depreciation. The exercise of opting for a calculation from SLM to WDV method while filing a valid revised return can be said to be substantial compliance of Rule 5(1A) of the Rules, more particularly, when the claim is not doubted. The second proviso to Rule 5(1A) cannot operate in rigidity by restricting to SLM only as per the return of income filed under Section 139(1) of the Act, albeit the revised return under Section 139(5) of the Act is treated as valid return, and it supersedes the original return.