' AQ HUSSAIN, J.-Mr. Nasim Hasan, an Advocate of this Court, was assessed to Income-tax for the charge 1963-64 by the Income-tax Officer, Lahore. He declared gross receipts of Rs, 57,161 and had claimed Rs, 16,303 on account of expenditure. He claimed depreciation of his car at the written down value of Rs, 14,475. The car was admittedly used for non-professional purposes also. The Income-tax Officer was of the view that this value should be determined by deducting the amount of depreciation actually allowed from the original cost incurred by the assessee. The total depreciation and the last assessm ent was Rs, 16,800. This was substracted from the original cost and the balance was treated by the Income-tax Officer as the written down value of the car. As already stated above, the car was admittedly being used for non-professional purposes also and the Income-tax Officer proceeded to allow only a part of the depreciation for Income-tax purposes.
2. Despite this, for the year under review he treated the entire allowance which would have been admissible had the car been used only for professional purposes as the basis for the new deduction.
3. Mr. Nasim Hassan felt aggrieved and appealed to the Appellate Assistant Commissioner where he submitted that as the depreciation was being restricted to the amount considered relevant for professional purposes only, the amount actually allowed in the proceedings here should have been taken into consideration in working out the written down value.
4. The Appellate Assistant Commissioner accepted this contention. The Department appealed to the Tribunal but the Tribunal declined to interfere with the decision, therefore, at the instance of the Appellate Assistant Commissioner the Tribunal has referred the following question to us for our answer:- "Whether on the facts and in the circumstances of the case, the written down value of the car should be determined after deducting full depreciation statutorily allowed or only that part of the depreciation which was allowed, the remaining part being attributable to use of the car for non- professional purposes?"
5. Section 10 subsection (5-D) of the Income-tax Act provides that : "In the case of assets acquired prior to the previous year the actual costs of the assessee less all depreciations allowed to him under this Act or any Act repealed thereby or under executive orders issued when the Indian Income-tax Act, 1886, was in force."
' The view taken by the Income-tax Officer would be fully justified if this was the state of law during the period to which assessm ent relates. Unfortunately for him, however, the word "actually" existed after the word "depreciation" and before the word "allowed" in the subsection quoted above, during the relevant period. This was deleted by Ordinance VI of 1969 (section 6). Since the word "actually" existed between the words "all depreciations" and "allowed to him", Mr. Nasim Hassan was right in demanding that out of the depreciation calculated in the previous year only that much which was "actually" allowed to him should be taken into consideration and not that part of it which was disallowed because the car was being used for other than professional purposes also.
6. This difference in the state of law seems to have escaped the attention of the learned Commissioner, therefore, his incorrect decision.
7. In these circumstances we would answer the question posed to us as follows t- The written down value of the car should be determined after deducting the depreciation actually allowed during the preceding year.
' In other words, we do not accept the plea of the Income-t ax Officer, Lahore, and, therefore, saddle him with the costs of this reference.