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5.2 According to the Id. counsel if the Legislature had really wanted to deprive the difference between book depreciation and income-tax depreciation, it would have provided a clause like 44AD(3), etc. The decision of the Tribunal in the case of Shriram Investments Ltd. (supra) rested on two aspects, viz. on the scope of section 43(6) and the Supreme Court's decision in Madeva Upendra Sinai's case (supra) and the absence of a provision like section 44AD(3). It is contended that these two aspects have not been touched by the A.P. High Court in its decision reported in Suryalatha Spg. Mills. Ltd.'s case (supra) as they did not arise for consideration.

The legislature could have used the words 'allowed or deemed to have been allowed', but it uses the words 'actually allowed'. It is argued that whenever the legislature wanted to dilute the effect of the words '`actually allowed', it had always employed necessary language vide section 10-A of the Income Tax Act which was introduced in 1981 and section 10-B of the Act which was introduced in 1989, on section 44AD(3) which was incorporated by Finance Act, 1994.

19.2 According to the ld. counsel, adoption of 30 per cent of book profit is an ad hoc exercise and section doesn't even attempt to correlate the deemed total income. In other words, the deemed total income is not arrived at by making additions or deductions to the normal total income. It is contended that the definition of the words 'written down value' under section 43(6) remained unaltered notwithstanding the decision of the Supreme Court in Madeva Upendra Sinai's case (supra). No attempt was made to incorporate a provision like section 10A(4)(iv) which was brought into the Statute Book, as early, as 1981. The learned counsel also referred to the provisions of section 44AD(3), introduced by Finance Act, 1994. He urged that section 44AD is similar to section 115.J in that it provides for determination of total income in an ad hoc manner with a deeming provision as section 115J. Even so, section 44AD(3) has been specifically incorporated in the Statute Book, and the absence of similar provision under section 115J clinches the issue in favour of the assessee. It was further argued that no provision like section 32(1) third proviso was incorporated, if the intention was to disallow a portion on any portion of depreciation entitlement. According to the learned counsel, these circumstances make it clear and self-evident that the right of an assessee to claim depreciation taking into account only the depreciation that was actually allowed in earlier previous years has not been taken away and was not intended to be taken away. The learned counsel referred to rules of Interpretation and the mischief rule or the rule of Haden's case in the light of legislative practice under similar circumstances. He relied on the decision of the Supreme Court in Sales Tax Commissioner v. Modi Sugar Mills AIR 1961 SC 1047 at page 1051 in which it was held: "It cannot imply anything which is not expressed, it cannot import provisions in the statute, so as to supply assumed deficiency." He further emphasised on the binding nature of the Supreme Court's Judgment in Madeva Upendra Sina'is case (supra). Reliance was also placed on the decision of the Gujarat High Court L. B. Kharawala v. ITO (1984) 147 ITR 67 (Guj), CIT v. Andhra Pradesh Riding Club (1987) 168 ITR 393 (AP) at page 404. It is ultimately contended that it will be a mistake apparent from record if a decision is rendered contrary to Madevi Upendra Sinai'c case (supra).

22.1 The learned counsel for the assessee has referred to the provisions of section 44AD(3) which read as under:

"(3) Written down value of any asset used for the purpose of the business referred to in sub-section (1) shall be deemed to have been calculated as if the assessee had claimed and had been actually allowed the deduction in respect of the depreciation for each of the relevant assessment years".

On the basis of the provisions of the said section 44AD(3), the learned counsel argued that there is no similar provision in section 115J and hence, it cannot be presumed that the assessee had been actually allowed the deduction in respect of depreciation.

22.3 Under section 29 of the Income Tax Act, 1961 the income from profits and gains of business or profession shall be computed in accordance with the provisions contained in sections 30 to 43D of the Income Tax Act, 1961. The business income to be computed in accordance with the provisions of sections 30 to 43D, is under the normal provision of the Act, relating to regular computation of income. Section 32 is part and parcel of the scheme of the Act (as mentioned in section 29) regarding regular and normal computation of income in accordance with the provisions contained in sections 30 to 431). Section 44AD(3) is also part and parcel of regular assessment of income [as defined under section 2(40) of the Act]. Since section 44AD(3) is a part of regular computation of income under section 143 it was necessary to provide in sub-section (3) of section 44AD that while computing the profits and gains of business of civil construction the W.D.V. of the assets shall be deemed to have been calculated as if the assessee has claimed and had actually been allowed depreciation for each of the relevant assessment year. It was necessary to enact such a provision because, section 44AD is a part of regular assessment of business income, while making regular assessment under section 143. If such a provision has not been made in section 44AD(3) then there would have been doubts about the admissibility or allowability of depreciation in the case of computation of profits and gains of business of civil constructions, because provisions of section 32 as well as section 44AD form part of regular assessment under section 143 and the scheme of computation of income from profits and gains of business. But section 115J is totally independent charging section and it has no connection with regular assessment or computation of income under the scheme of the Act, as provided in section 29 and section 143 of the Act. Therefore, there was no need to make such a provision in section 115J as has been made in section 44AD(3). Both these sections, i.e., sections 44AD and 115J are totally different in nature. The object and purpose of these provisions are also totally different. The object of section 44AD is to determine the income from profits and gains of business of any assessee carrying on business of civil construction or supply of labour for civil construction under regular assessment, as defined in section 2(40) of the Income Tax Act, whereas the purpose of section 115J is not to determine the income by way of regular assessment, but to tax certain companies at 30 per cent of book profits. The object and purpose of these two sections are therefore, totally different and there is no comparison between these sections. The comparison of these two sections is therefore, misconceived by the learned counsel.