ORDER 1. This appeal against reference under Section 256 of the Income Tax Act, 1961, for short the Act, raises the following question : "Whether on the facts and circumstances of the case and having regard to the second proviso to Rule 5 of the Income Tax Rules, 1962, the Tribunal was correct in law in holding that the extra shift depreciation allowance for double and triple shifts in the case of the seasonal factory was not to be calculated at 100% of the normal depreciation allowance in the relevant previous year even though it had worked triple shift during the entire working season of that year." The question was answered by the Division Bench of the Allahabad High Court in I.T.R. No. 57 of 1977 dated 10-8-1981 in favour of the Revenue and against the assessee. Thus this appeal by special leave. 2. It is contended for the assessee that since the appellant had worked in the sugar factory for 152 days which is a seasonal factory and of distillery for 215 days in the accounting year 1-10-1963 to 30-9-1964, the appellant is entitled to the calculation of the extra depreciation on triple shift on the basis of 152/180 actual working days and not 152/300 as calculated by ITO and accepted by the High Court. In support thereof, he seeks to place reliance on the first explanation to Rule 5 of Appendix I of the Rules. 3. Section 32 of the Act provides for allowing deduction in respect of depreciation of buildings, machinery, plant or furniture owned by the assessee and used for the purpose of business or profession. In the case of buildings, machinery, plant or furniture, other than ships, covered by clause (1) depreciation is allowed at such percentage on the written down value thereof as prescribed. That provision, insofar as it is relevant for our present purpose, reads as follows : "32. In the case of buildings, machinery, plant or furniture, other than ships, covered by clause (1) depreciation is allowed at such percentage on the written down value thereof as prescribed. That provision, insofar as it is relevant for our present purpose, reads as follows : "32. (1) In respect of depreciation of buildings, machinery, plant or furniture owned by the assessee and used for the purposes of the business or profession, the following deduction shall, subject to the provisions of Section 34, be allowed- (i) * * * (ii) in the case of buildings, machinery, plant or furniture, other than ships covered by clause (i) such percentage on the written down value thereof as may in any case or class of cases be prescribed : Provided that where the actual cost of any machinery or plant does not exceed seven hundred and fifty rupees, the actual cost thereof shall be allowed as a deduction in respect of the previous year in which such machinery or plant is first put to use by the assessee for the purposes of his business or profession ... ." 2. (33) Prescribed means "Prescribed by rules made under the Act". Rule 5 of the I. T. Rules, 1962, prescribes as follows: "5. Depreciation.- (1) Subject to the provisions of sub-rules (2) and (3), the allowance under clause (i) or clause (ii) of sub-section (1) of Section 32 in respect of depreciation of buildings, machinery, plant or furniture shall be at a percentage of the actual cost or the written down value, as the case may be, equal to (i) 100 per cent, (ii) fifty per cent, or (iii) nil per cent of the number shown in the corresponding entry in the second column of the statement in Part I of Appendix I to these rules according as the buildings, machinery, plant or furniture have been used by the assessee in his business or profession during the previous year (i) for a period of 180 days or more, {ii) for a period of less than 180 days but more than thirty days, or (iii) for a period of thirty days or less than thirty days, respectively ... : Provided further that in the case of a seasonal factory worked by the assessee during all the working seasons of the previous year, depreciation shall be allowed as if the buildings, machinery, plant or furniture had been in use throughout the period the assessee was the owner thereof during the previous year." It is Item III of Pt. I of App. I referred to in Rule 5 which is relevant for our present purpose and it reads as follows: Class of asset Rate Remarks Number on the basis of which the percentage is to be calculated on the w.d.v. except where otherwise indicated in the case of ocean-going steamers. III. Machinery and plant 7 (i) General Rate An extra allowance up to a maximum of 50 per cent of the normal allowance shall be allowed by the Income Tax Officer where a concern claims such allowance on account of double shift working and satisfies the Income Tax Officer that the concern has actually worked double shift. An extra allowance up to a maximum of 100 per cent of the normal allowance, instead of 50 per cent, shall be allowed in computing the total income assessable for any assessment year commencing on or after the 1st day of April,  1964, where a concern proves that it has worked triple shift. The calculations of the extra allowances for double shift working and for triple shift working shall be made separately in the proportion which the number of days for which the concern worked double shift or triple shift, as the case may be, bears to the normal number of working days throughout the previous year. For this purpose, the normal number of working days throughout the previous year shall be taken as 300, and if, for example, a concern has worked only double shift for 100 days and triple shift for another 100 days, the extra allowance for double shift shall be one-third of 50 per cent of the normal allowance and that for triple shift shall be one-third of 100 per cent of the normal allowance. This applies to all concerns whether the general rate or any special rate of depreciation applies to them, but does not apply to an item of machinery or plant which has been specifically excepted by the inscription of the letter N.E.S.A. against it. This applies to all concerns whether the general rate or any special rate of depreciation applies to them, but does not apply to an item of machinery or plant which has been specifically excepted by the inscription of the letter N.E.S.A. against it. Explanation 1.- For this purpose, the normal allowance means the amount of depreciation allowance (other than the extra depreciation allowance for multiple shift working) that would have been allowed under Rule 5 if the machinery or plant had been used during the previous year for a period of 180 days or more, or in the case of a seasonal factory, if that factory had been worked by the assessee during all the working seasons of the previous year. Explanation 2.- For the removal of doubts, it is hereby declared that no extra allowance for double or triple shift working shall be allowed in a case where the machinery or plant has been used for a period of thirty days or less than thirty days during the previous year." 4. In computing the depreciation in Dhampur Sugar Mills Ltd. v. CIT (1980) 126 ITR 648: 1980 UPTC 926 (All) the Full Bench of the Allahabad High Court considered the question at (ITR p. 652) and held that : "The note in the remarks column of Appendix I was modified with effect from April 1, 1970. For calculating the extra shift allowance the normal number of working days, which, till then, was 300, was changed. In the case of a seasonal factory or concern, the normal number of working days were to be treated as 180 irrespective of the number of days on which the factory or concern actually worked during the whole year. In other cases, the figure was 240 days. Thus, the number of normal working days was reduced from 300 to 240 generally and 180 in the case of seasonal factories. This change no doubt liberalised the grant of extra shift allowance. But this change was not made retrospective. Further, even according to this change, the normal number of working days have been artificially fixed. There is no corelation with the provision in the second proviso to Rule 5 where the criteria is that the concern worked throughout all the working season irrespective of the number of days." 5. But this change was not made retrospective. Further, even according to this change, the normal number of working days have been artificially fixed. There is no corelation with the provision in the second proviso to Rule 5 where the criteria is that the concern worked throughout all the working season irrespective of the number of days." 5. In Andhra Pradesh High Court in CIT v. Sarvaraya Sugars Ltd. (1981) 129 ITR 538 the Full Bench, which also interpreted the same provision in relation to the seasonal factory (at ITR p. 550) held that: "A seasonal factory or for that matter any factory may not work on all the 365 days of the year. Hence, some criteria had to be evolved for the purpose of allowing normal depreciation allowance. That criteria is laid down in Rule 5. That rule which prescribes that the machinery and plant of any concern should have worked for a minimum period of 180 days to earn full normal allowance lays down working during all the working seasons of the previous year as sufficient in the case of a seasonal factory for admitting normal depreciation allowance. The Act nowhere lays down and there is no overriding principle of law which enjoins that extra allowance also should be deducted on the same basis. Whatever may have been the position, if no criteria or mode of calculation of extra allowance were laid down in col. (3) of Pt. I of Appx. I, then for admitting extra allowance for double shift and triple shift, a particular mode of calculation is specified and no distinction is made in that regard between seasonal factories and other concerns, then there is no ostensible reason why the proportion mentioned therein should not be applicable to seasonal factories." and held that : "... the assessee was not entitled to extra shift allowance without reference to the normal number of working days, viz., 300 and the days for which the plant and machinery worked for such extra shift." The same rule was laid by Calcutta and Gujarat High Courts referred to in Dhampur Sugar Mills (1980) 126 ITR 648. In the light of the artificial definition given by the Explanation given in Appendix II to Rule 5 in computing the extra depreciation allowance under Section 32 read with Rule 5, the method adopted by the rule itself has to be worked. In the light of the artificial definition given by the Explanation given in Appendix II to Rule 5 in computing the extra depreciation allowance under Section 32 read with Rule 5, the method adopted by the rule itself has to be worked. It is fairly stated that the appellant has no other method to calculate depreciation. 6. Though the learned counsel relied upon J.K. Synthetics Ltd. v. ClT (1979) 118 ITR 629 in support of his contention, the High Court itself has overruled this decision in Dhampur Sugar Mills case (1980) 126 ITR 648. 7. Accordingly, we are of the considered view that the method of calculation adopted by the High Court is perfectly correct in the light of Explanation I appended to Rule 5 and the appendix. Accordingly, the appellant is entitled to calculation of the depreciation only on the actual working days i.e., 152/300 days envisaged in the rule itself. The appeal is accordingly dismissed but in the circumstances without costs. For Citation: 1995 Supp(1) SCC 284