Judgment :- MISHRA, J. Although in the statement of the case three questions of law are indicated, it appears and it is conceded at the Bar that the third question, "whether, on the facts and in the circumstances of the case, the Tribunal ought not to have held that the deduction under section 80G was allowable in respect of donation in kind amounting to Rs. 9, 366" does not rise and it is a mistake that the same has been included in the statement of the case as a question for a decision by this court The first question, "whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the reopening of the assessment under section 147(b) of the Income-tax Act was valid" , has to be answered strictly in the light of the judgment of the Supreme Court in the case of Indian and Eastern Newspaper Society v. CIT 1979 AIR(SC) 1960, 1979 (119) ITR 996, 1979 (4) SCC 248 , 1980 (1) SCR 442 , 1980 UJ 305 , 1979 (12) CTR 190, 1979 (2) TAXMAN 197, 1979 (119) JTR 996, 1979 (12) CTR(SC) 190, 1979 (12) CTR(Bom) 258. We have in Tax Case No. 79 of 1982 (M. A. Chidambaram v. CIT 1995 (216) ITR 175, order dated January 31, 1995) noted- "....it is conceded at the Bar that the audit report which only will point out a mistake in law, since the auditors are not interpreters of law, their interpretation will not be furnishing the necessary information. In case, however, any omission in respect of any income is pointed out, whether it comes through the audit report or otherwise, it is obvious, the same shall furnish necessary information to satisfy the requirements of the reopening of assessment under section 147(b) of the Income-tax Act." We do not have necessary materials on the record to know whether the audit report which has furnished the basis for the reopening of the assessment mentions any omission in respect of any income in the return of the assessee or otherwise discloses some factual information that fulfilled the requirement of section 147(b) of the Income-tax Act, 1961 (hereinafer referred to as "the Act"). It is obvious, the Tribunal, in the light of the above judgments, is required to rehear the matter and decide afresh in accordance with law, whether reassessment proceedings have been validly initiatedBefore we deal with the second question, "whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee was not entitled to substitute the fair market value as on January 1, 1954, in respect of the assets on which depreciation has been allowed under the provisions of the Income-tax Act in the computation of the capital gains on the sale of those assets?" we may notice that the assessee is a company incorporated in the United Kingdom. The assessment for the year ended November 30, 1970, relevant to the assessment year 1971-72, was completed by the Income-tax Officer by his order dated February 24, 1972. The assessee filed an appeal to the Appellate Assistant Commissioner, mainly in respect of the computation, made by the Income-tax Officer under capital gains. The Appellate Assistant Commissioner, however, did not accept the case of the assessee. The assessee filed an appeal to the Tribunal which was disposed of on October 30, 1975. The Income-tax Officer, however, reopened the assessment under section 147(b) of the Act read with section 143(3) thereof vide his order dated November 23, 1976. In his revised assessment order, the Income-tax Officer among other things recomputed the capital gains holding that the assessee was not entitled to substitution of the market value as on January 1, 1954. The Appellate Assistant Commissioner confirmed the order of the Income-tax Officer. The Tribunal on the question of computation and substitution of the market value as on January 1, 1954, in respect of the depreciable assets has found against the assessee in these words. "The further question in the two years is whether in the computation of capital gains in respect of depreciable assets the assessee was entitled to take the fair market value of such assets as on January 1, 1954. Section 50(1) provides for special provision for computing the cost of acquisition in the case of depreciable assets wherein only the written down value as defined should be taken as cost of acquisition of the assets. When there is a specific provision in the case of sale of depreciable assets the written down value alone can be taken. Section 50(1) provides for special provision for computing the cost of acquisition in the case of depreciable assets wherein only the written down value as defined should be taken as cost of acquisition of the assets. When there is a specific provision in the case of sale of depreciable assets the written down value alone can be taken. This view of the Income-tax Officer and the Appellate Assistant Commissioner are supported by the decisions of the Gujarat High Court in the case of Rajnagar Vaktapur Ginning, Pressing and Manufacturing Co. Ltd. v. CIT 1975 (99) ITR 264 and the Allahabad High Court in the case of CIT v. Upper Doab Sugar Mills 1979 (116) ITR 240. In the face of such decisions and the clear provisions of section 50(1) of the Income-tax Act, the Income-tax Officer has properly computed the capital gains and hence such computation will have to be confirmedBesides the two judgments, that is, in the case of Rajnagar Vaktapur Ginning, Pressing and Manufacturing Co. Ltd. v. CIT 1975 (99) ITR 264 and in the case of CIT v. Upper Doab Sugar Mills 1979 (116) ITR 240 of the Gujarat High Court and the Allahabad High Court respectively, we have the advantage of perusing the judgments of the other High Courts including two Full Bench judgments, of the Kerala High Court in CIT v. Commonwealth Trust Ltd. 1982 (135) ITR 19, 1982 (28) CTR 311, 1982 (10) TAXMAN 258, 1982 (28) CTR(Ker) 311 and the Bombay High Court in Goculdas Dossa and Co. v. J. P. Shah 1995 (211) ITR 706, 1994 (119) CTR 14, 1994 (75) TAXMAN 449, 1994 (2) TLR 667, and the opportunity to hear learned counsel for the assessee as well as learned counsel for the Revenue at length. We have been sufficiently induced by very learned arguments at the Bar to deliver ourselves information on the question which has received considerable attention and the Bombay High Court has chosen to call the decisions rendered by the Allahabad, Gujarat, Kerala and Calcutta High Courts, "wrong" Income-tax on any profits or gains arising from the transfer of a capital asset is chargeable as the income of the previous year in which the transfer took place under the head of capital gains as envisaged under section 45 of the Act. Exception to this is carved out by the provision under section 47. Exception to this is carved out by the provision under section 47. Section 48 of the Act provides the mode of computation and deductions by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset (i) expenditure incurred wholly and exclusively in connection with such transfer ; (ii) the cost of acquisition of the capital asset and the cost of any improvement thereto. Section 49 of the Act says that the cost of acquisition of the asset shall be taken to be the cost for which the previous owner of the property acquired it, as increased by the cost of any improvement of the assets incurred or borne by the previous owner of the assessee, as the case may be(i) on any distribution of assets on the total or partial partition of a Hindu undivided family; (ii) under a gift or will; (iii)(a) by succession, inheritance or devolution, or (b) on any distribution of assets on the dissolution of a firm, body of individuals, or other association of persons, or (c) on any distribution of assets on the liquidation of a company, or (d) under a transfer to a revocable or an irrevocable trust, or (e) under any such transfer as is referred to in clause (iv) or clause (v) or clause (vi) of section 47; (iv) such assessee being a Hindu undivided family, by the mode referred to in sub-section (2) of section 64 at any time after the 31st day of December, 1969. A special provision for computing the cost of acquisition in the case of depreciable assets besides what is contemplated under section 49 is introduced under section 50 of the Act in these words" where the capital asset is an asset in respect of which a deduction on account of depreciation has been obtained by the assessee in any previous year either under this Act or under the Indian Income-tax Act, 1922 (11 of 1922), or any Act repealed by that Act or under executive orders issued when the Indian Income-tax Act, 1886 (2 of 1886), was in force, the provisions of sections 48 and 49 shall be subject to the following modifications. (1) The written down value, as defined in clause (6) of section 43, of the asset, as adjusted, shall be taken as the cost of acquisition of the asset. (1) The written down value, as defined in clause (6) of section 43, of the asset, as adjusted, shall be taken as the cost of acquisition of the asset. (2) Where under any provision of section 49, read with sub-section (2) of section 55, the fair market value of the asset on the 1st day of January, 1954, is to be taken into account at the option of the assessee, then, the cost of acquisition of the asset shall, at the option of the assessee, be the fair market value of the asset on the said date, as reduced by the amount of depreciation, if any, allowed to the assessee after the said date, and as adjusted. "This special provision is made for computing the cost of acquisition in the case of depreciable assets where the capital asset is an asset in respect of which a deduction on account of depreciation has been obtained by the assessee in the previous year. The mode of computation and deductions as under section 48 and the cost of acquisition as contemplated under section 49 are varied in such a case by accepting the written down value as defined in clause (6) of section 43 of the asset, as adjusted. "Written down value" as defined in clause (6) of section 43 means, --" (a) in the case of assets acquired in the previous year, the actual cost to the assessee; (b) in the case of assets acquired before the previous year, the actual cost to the assessee less all depreciation actually allowed to him under this Act, or under the Indian Income-tax Act, 1922 (11 of 1922), or any Act repealed by that Act, or under any executive orders issued when the Indian Income-tax Act, 1886 (2 of 1886), was in force. Provided that in determining the written down value in respect of buildings, machinery or plant for the purposes of clause (ii) of sub-section (1) of section 32, 'depreciation actually allowed' shall not include depreciation allowed under sub-clauses (a), (b) and (c) of clause (vi) of sub-section (2) of section 10 of the Indian Income-tax Act, 1922 (11 of 1922), where such depreciation was not deductible in determining the written down value for the purposes of the said clause (vi) Explanation 1.-- When in a case of succession in business or profession, an assessment is made on the successor under sub-section (2) of section 170 the written down value of any asset shall be the amount which would have been taken as its written down value if the assessment had been made directly on the person succeeded toExplanation 2.-- When any capital asset is transferred by a holding company to its subsidiary company or by a subsidiary company to its holding company, then, if the conditions of clause (iv), or, as the case may be, of clause (v) of section 47, are satisfied, the written down value of the transferred capital asset to the transferee company shall be taken to be the same as it would have been if the transferor company had continued to hold the capital asset for the purposes of its business. Explanation 2A.-- Where, in a scheme of amalgamation, any capital asset is transferred by the amalgamating company to the amalgamated company, and the amalgamated company is an Indian company, the written down value of the transferred capital asset to the amalgamated company shall be taken to be the same as it would have been if the amalgamating company had continued to hold the capital asset for the purposes of its business. Explanation 3.-- Any allowance in respect of any depreciation carried forward under sub-section (2) of section 32 shall be deemed to be depreciation 'actually allowed'. "Section 55 of the Act provides for the purposes of sections 48, 49 and 50, the meaning of the words "adjusted","cost of improvement"and" Cost of acquisition". Explanation 3.-- Any allowance in respect of any depreciation carried forward under sub-section (2) of section 32 shall be deemed to be depreciation 'actually allowed'. "Section 55 of the Act provides for the purposes of sections 48, 49 and 50, the meaning of the words "adjusted","cost of improvement"and" Cost of acquisition". The word "adjusted" is defined, (a) in relation to written down value or fair market value to mean diminished by any loss deducted or increased by any profits assessed, under the provisions of clause (iii) of sub-section (1), or clause (ii) of sub-section (1A) of section 32 or sub-section (2) or sub-section (2A) of section 41, as the case may be, the computation for this purpose being made with reference to the period commencing from the 1st day of January, 1954, in cases to which clause (2) of section 50 applies ; "cost of acquisition" is defined, for the purposes of sections 48 and 49, in relation to a capital asset, --(i) where the capital asset became the property of the assessee before the 1st day of January, 1954, means the cost of acquisition of the asset to the assessee or the fair market value of the asset on the 1st day of January, 1954, at the option of the assessee ; (ii) where the capital asset became the property of the assessee by any of the modes specified in sub-section (1) of section 49, and the capital asset became the property of the previous owner before the 1st day of January, 1954, means the cost of the capital asset to the previous owner of the fair market value of the asset on the 1st day of January, 1954, at the option of the assessee ; (iii) where the capital asset became the property of the assessee on the distribution of the capital assets of a company on its liquidation and the assessee has been assessed to income-tax under the head 'Capital gains' in respect of that asset under section 46, means the fair market value of the asset on the date of distribution; (iv) omitted ; (v) where the capital asset, being a share or a stock of a company, became the property of the assessee on, -- (a) the consolidation and division of all or any of the share capital of the company into shares of larger amount than its existing shares (b) the conversion of any shares of the company into stock (c) the re-conversion of any stock of the company into shares (d) the sub-division of any of the shares of the company into shares of smaller amount, or (e) the conversion of one kind of shares of the company into another kind means the cost of acquisition of the asset calculated with reference to the cost of acquisition of the shares or stock from which such asset is derived. Section 50 of the Act modified the provisions of sections 48 and 49 of the Act and says that the written down value, as above (as defined in clause (6) of section 43) of the asset, as adjusted, shall be taken as the cost of acquisition of the asset where the capital asset is an asset in respect of which a deduction on account of depreciation has been obtained by the assessee in any previous year. Thus, while computing the capital gains when occasion to deduct from the value of the consideration received or accruing as a result of the transfer of the capital asset arises, the cost of the acquisition of the depreciable asset is the written down value as defined in clause (6) of section 43 as adjusted, that is diminished by any loss deducted or increased by any profits assessed under the provisions of clause (iii) of sub-section (1) or clause (ii) of sub-section (1A) of section 32 or sub-section (2) or sub-section (2A) of section 41, of the Act. In the case of clause (2) of section 50, that is, where under any provision of section 49, the fair market value of the asset on the 1st day of January, 1954, is to be taken into account at the option of the assessee, then, the computation for the purpose is required to be made with reference to the period commencing from the first day of January, 1954. The definition given to the word "adjusted" read with the definition given to the word "cost of acquisition" makes it clear that where the fair market value of the asset is to be taken into account at the option of the assessee, then, the cost of acquisition of the asset shall, at the option of the assessee, be the fair market value of the asset on the first day of January, 1954. In the case, however, of the written down value being taken as the cost of acquisition of the asset, the adjustment is permissible as contemplated under the provisions of clause (iii) of sub-section (1) or clause (ii) of sub-section (1A) of section 32 or sub-section (2) or sub-section (2A) of section 41, as the case may beIt is also relevant to note that instead of the written down value, the fair market value of the asset can be taken into account at the option of the assessee under any provision of section 49 of the Act read with sub-section (2) of section 55, i.e., as the cost of acquisition as defined under section 55(2) [50(2) ?] of the Act. From amongst the judgments of the courts which have taken the view that in the case of computation of the cost of acquisition in the case of depreciable assets, the written down value alone can be taken for assessment as under section 50(1) of the Act, we propose to take up the Full Bench judgment of the Kerala High Court in Common wealth Trust Ltd.'s case 1982 (135) ITR 19, 1982 (28) CTR 311, 1982 (10) TAXMAN 258, 1982 (28) CTR(Ker) 311. After quoting section 50 of the Act, the Kerala High Court has observed". It may be seen from a reading of this provision that this section is of application to a case where a capital asset is an asset in respect of which deduction on account of depreciation has been obtained by the assessee in any previous year. In the case before us, the assessee had obtained a deduction on account of depreciation in the previous years. In that event, section 50 provides that the provisions of sections 48 and 49 shall be subject to the modifications indicated in clauses (1) and (2). Section 49 having no application here and only section 48 having application, that alone has to be read subject to clause (1). Clause (2) applies to a case to which section 49 applies.... Hence, though section 55(2) gives an option to an assessee to choose one of the two values as the cost of acquisition for the purpose of section 48 in a case to which section 50 applies, section 48 had to be read subject to the modification and, consequently, the option would not be available. Hence, though section 55(2) gives an option to an assessee to choose one of the two values as the cost of acquisition for the purpose of section 48 in a case to which section 50 applies, section 48 had to be read subject to the modification and, consequently, the option would not be available. The cost of acquisition would have to be taken in such a case as the written down value as defined in clause (6) of section 43. "The Kerala High Court has further observed. " We are not impressed with the contention of the learned counsel for the assessee that since the definition of 'cost of acquisition' in section 55(2) will apply for the purpose of section 48 and this is a case to which section 48 would so apply, section 55(2) must govern despite section 50 of the Act. That would be to render section 50 inoperative. We do not see why we should resort to such a construction. While the option contemplated under section 55(2) of the Act will be available in every case where capital gains is determined in accordance with section 48, that would not be the case where what is applicable is not section 48 as such but section 48 as modified by section 50. The special provision must necessarily operate in such a case so as to render the option under section 55(2) unavailable and also to equate the cost of acquisition in such a case with the written down value as defined in clause (6) of section 43. "The Bombay High Court, has, however, in Goculdas Dossa and Co.'s case 1995 (211) ITR 706, 1994 (119) CTR 14, 1994 (75) TAXMAN 449, 1994 (2) TLR 667 [FB] quoted in full section 50 and section 55 of the Act and stated" Section 50 contains special provision for computing the cost of acquisition in the case of depreciable assets. It stipulates that where depreciation has been obtained in the case of a capital asset, the provisions of sections 48 and 49 stand modified. Clause (1) of section 50 states that the written down value defined in section 43(6) and 'as adjusted'(defined in section 55(1)(a)), will have to be taken into account as the cost of acquisition of the transferred asset. The above modification applies to both sections 48 and 49. Clause (1) of section 50 states that the written down value defined in section 43(6) and 'as adjusted'(defined in section 55(1)(a)), will have to be taken into account as the cost of acquisition of the transferred asset. The above modification applies to both sections 48 and 49. Hence, the written down value of a depreciable capital asset shall be taken as the cost of acquisition under section 48 and also under section 48 read with section 49, as the case may be. This sub-section applies to (i) section 48 in respect of a depreciable asset acquired before January 1, 1964, and where the option of substituting the market price as on the date is not in fact exercised though available, and (ii) section 49 where the asset became the property of the previous owner before that date and the option is not exercised. In the latter case, the written down value as adjusted will be the cost of acquisition and not the cost of acquisition of the previous owner. Clause (2) of section 50 provides that where under any provision of section 49 read with sub-section (2) of section 55, the fair market value as on that date is taken into account at the option of the assessee, the cost of acquisition shall be the said value, as reduced by the depreciation allowed to the assessee after the said date and as adjusted. Words to be noted in clause (2) are 'the fair market as on the said date is to be taken into account at the option of the assessee'. It is obvious that clause (2) will apply only after the option is already exercised and that the said sub-section is not the source of option. Examination of the scheme of capital gains as a whole will indicate that the only source of such option is section 55(2) and this is indicated unmistakably in the very first part of section 50(2). Thus, it will be seen that section 50 though a special provision is not a complete code unto itself for computing capital gains and in no way affects an assessee's option given under section 55(2)Sub-section (1) of section 55 is a definition provision and does not contain any substantive provision. However, sub-section (2) of section 55 is a substantive provision of granting option. However, sub-section (2) of section 55 is a substantive provision of granting option. Sub-section (2) sets out the meaning of cost of acquisition in relation to all varieties of capital assets--depreciable or non-depreciable. This provision is for the purposes of sections 48 and 49 because ultimately the computation of capital gains has to be as per section 48. For example, deductibility of the cost of transfer is only under section 48. Section 50 does not contain exhaustive provisions for the computation of capital gains. Sub-section (2) only deals with capital assets which became the property of the assessee or the previous owner before January 1, 1964, and grants the option to the assessee either to have the actual cost of acquisition of the asset or the fair market value of the asset on the said date as the cost of acquisition. Thus, it contains a general right in the matter of option irrespective of the type of asset which is transferred. We notice nothing in section 50(1) read with section 48(ii) which would confine the wide scope of section 55(2)(i) to the case of a non-depreciable asset where the assessee has acquired it by purchase. Therefore, in our view, the provisions of section 55(1) being applicable to sections 48, 49, 50 and 55(2) being the only source of the option, it is clear that where the depreciable asset became the property of the assessee either by purchase or under the modes specified in section 49, the assessee has the option. "Proceeding further, the Bombay High Court has commented on section 50(1) thus" It, on one hand, provides that where an assessee has been allowed depreciation he does not claim as its cost the actual amount spent on acquiring the asset even though he has obtained depreciation in respect thereof ; and, on the other hand, it enjoins that not only the written down value as computed under section 43(6) but as adjusted in the manner provided in section 55(1)(a) is to be taken as the cost as against the actual cost. Thus, the actual written down value is increased by the depreciation which is brought to charge under section 41(2). Thus, the actual written down value is increased by the depreciation which is brought to charge under section 41(2). This is so because as such excess allowance of depreciation has been subjected to tax, the cost of the asset cannot be pegged at the original written down value as defined under section 43(6), but must be increased to the extent that the assessee has paid tax on the depreciation which is withdrawn under section 41(2). It will not be out of place to mention that section 55(1)(a) also provides for reducing the written down value by balancing allowance under section 32(1)(iii) where the sale price realised is less than the written down value as defined by section 43(6) an aspect which does not call for attention and detailed analysis in this case. It has to be borne in mind that the function of section 41(2) is to take back depreciation which is shown by subsequent events to have been wrongly allowed... "Commenting upon section 55(2) of the Act, the Bombay High Court has said. The object of the option given in section 55(2) is to afford some protection to the assessee against assessment of illusory capital gain which is not in economical sense but is a result of inflation and decline in the rupee value. This is apparent from the fact that the initial date January 1, 1954, which was taken from the old Indian Income-tax Act, 1922, has been forwarded periodically. As inflation had been on the rise the date was changed to January 1, 1964, with effect from the assessment year 1978-79 by the Finance (No. 2) Act, 1977, and April 1, 1974, with effect from the assessment year 1987-88 by the Finance Act, 1986. At present the said date has not only been advanced to April, 1981, but even indexation is provided with a view to safeguarding against the illusory, assessment of capital gains. " The Bombay High Court has said further. " Keeping in mind the purpose behind conferment of option, we are unable to locate any justifiable reason for not making available the option to an assessee who has purchased a depreciable asset and after using the same, sold it. There is nothing in section 50(2) which leads to a contrary conclusion though there is no escape from the conclusion that language employed is somewhat clumsy. There is nothing in section 50(2) which leads to a contrary conclusion though there is no escape from the conclusion that language employed is somewhat clumsy. Treating section 50(2) separately, the Bombay High Court has said at" Section 50(2) deals with the case of an assessee who has acquired an asset otherwise than by purchase and in one of the modes specified in section 49 such as gift.... The fact that specific reference is made in section 50(2) to taking the cost of acquisition of the asset as the fair market value on January 1, 1964, cannot possibly lead to the conclusion that in the case of an assessee who has acquired the asset by purchase, the option conferred by section 55(2)(i) of taking the fair market value on January 1, 1964, as the cost of acquisition is taken away. It is significant to notice that section 50 enacts that only the provisions of sections 48 and 49 are subjected to the modifications contained in section 50. The option of substitution, as discussed, earlier, is conferred by section 55(2) which is not made subject to section 50 and, thus, where the option is exercised, the capital gains have to be computed as per provisions of section 48The Bombay High Court has also said: "As discussed earlier, the object of section 50(2) seems to be to provide for deduction of the fair market value on January 1, 1964, by the amount of depreciation allowed to the donee-assessee after January 1, 1964, because as per section 55(1)(a), the fair market value has to be adjusted by the amount assessed under section 41(2) with reference to the period commencing from January 1, 1964. Thus, a reduction is made under section 50(2) and nullified subsequently by the adjustment prescribed under section 55(1)(a)." We have no manner of doubt that both the Kerala High Court and the Bombay High Court have the same perception and have read section 50(1) as well as section 50(2) of the Act in almost the same manner. Both the courts have clearly pronounced that section 50(2) is attracted only when the capital asset is acquired by one of the modes as indicated in section 49 of the Act. Both the courts have clearly pronounced that section 50(2) is attracted only when the capital asset is acquired by one of the modes as indicated in section 49 of the Act. They are clear thus that special provision for computing the cost of acquisition in the case of depreciable assets in case the assessee has the option and he has exercised the option and the acquisition is under one or the other provisions of section 49 of the Act, the fair market value of the asset on the prescribed date as reduced by the amount of depreciation, if any, allowed to the assessee after the said date, and as adjusted in accordance with section 55(1)(a) shall be taken to be the cost of acquisition. The Kerala High Court, however, in Commonwealth Trust Ltd.'s case 1982 (135) ITR 19, 1982 (28) CTR 311, 1982 (10) TAXMAN 258, 1982 (28) CTR(Ker) 311 [FB] has also said: "We have particularly to notice that the 'cost of acquisition' as defined in section 55(2) is 'for the purposes of sections 48 and 49' only. As the Income-tax Act stood during the relevant assessment year in place of the date 1st January, 1964, the date was 1st January, 1954, and for the purposes of the case here that is the date which is relevant. It is evident that in a case falling within sections 48 and 49, the assessee had an option to adopt either the fair market value of the asset as on January 1, 1954, or the cost of acquisition of the asset to the assessee. If it was more advantageous to him to adopt the value as on January 1, 1954, he was free to do so. It is this option that is sought to be exercised by the assessee in this case. We have already indicated that the definition of 'cost of acquisition' in section 55(2) which enables an assessee to exercise the option is for the purpose of sections 48 and 49 only. To these sections we have adverted and we have pointed out that section 49 has no application here. Now, we may have to advert to section 50 of the Act which is a special provision concerning the determination of capital gains in regard to depreciable assets. . . ." The difference, it seems expanded on account of the Kerala High Court's view. Now, we may have to advert to section 50 of the Act which is a special provision concerning the determination of capital gains in regard to depreciable assets. . . ." The difference, it seems expanded on account of the Kerala High Court's view. "Hence, though section 55(2) gives an option to an assessee to choose one of the two values as the cost of acquisition for the purpose of section 48, in a case to which section 50 applies, section 48 had to be read subject to the modification and, consequently, the option would not be available." The Bombay High Court's observations in Goculdas Dossa and Co.'s case 1995 (211) ITR 706, 1994 (119) CTR 14, 1994 (75) TAXMAN 449, 1994 (2) TLR 667 [FB] ". . . . sub-section (2) of section 55 is a substantive provision of granting option. Sub-section (2) sets out the meaning of cost of acquisition in relation to all varieties of capital assets--depreciable or non-depreciable. This provision is for the purposes of sections 48 and 49 because ultimately the computation of capital gains has to be as per section 48. For example, deductibility of the cost of transfer is only under section 48. Section 50 does not contain exhaustive provisions for the computation of capital gains. Sub-section (2) only deals with capital assets which became the property of the assessee or the previous owner before January 1, 1964, and grants the option to the assessee either to have the actual cost of acquisition of the asset or the fair market value of the asset on the said date as the cost of acquisition. Thus, it contains a general right in the matter of option irrespective of the type of asset which is transferred. We notice nothing in section 50(1) read with section 48(ii) which would confine the wide scope of section 55(2)(i) to the case of a non-depreciable asset where the assessee has acquired it by purchase. Thus, it contains a general right in the matter of option irrespective of the type of asset which is transferred. We notice nothing in section 50(1) read with section 48(ii) which would confine the wide scope of section 55(2)(i) to the case of a non-depreciable asset where the assessee has acquired it by purchase. Therefore, in our view, the provisions of section 55(1) being applicable to sections 48, 49, 50 and 55(2) being the only source of the option, it is clear that where the depreciable asset became the property of the assessee either by purchase or under the modes specified in section 49, the assessee has the option." do not in any manner suggest that in cases which are covered by section 50 of the Act and not section 50(2), section 50(1) is attracted and the mode, of acquisition is not one as specified under section 49 of the Act. The assessee shall have the option to ask for the deduction of the cost of acquisition of the capital asset by claiming the fair market value and not the written down value as defined in clause (6) of section 43 of the Act when the capital asset is an asset in respect of which a deduction on account of depreciation has been obtained by him in any previous year. The Bombay High Court is categoric in holding that section 50(1) only aims at preventing the grant of double deduction. Section 50 makes sections 48 and 49 subject to the modifications in section 50, but does not make the option under section 55(2) subject to section 50. In a case where the assessee has already availed of a deduction on account of depreciation in any previous year, section 48 is modified and he cannot ask for the deduction of the cost of acquisition of the capital asset in any manner other than the one envisaged under section 50 of the Act. Such adjustments as are permissible upon the written down value as defined in clause (6) of section 43 in terms of section 55(1) shall be granted to him and in no other manner except in cases falling under section 49 where his option is not affected by the special provision. Such adjustments as are permissible upon the written down value as defined in clause (6) of section 43 in terms of section 55(1) shall be granted to him and in no other manner except in cases falling under section 49 where his option is not affected by the special provision. We do not feel there is any reason to accept a generalisation of the rule under which in the name of exercising the option under section 55(2) of the Act, the assessee, who has already claimed the benefit of depreciation and whose case thus falls under section 50 of the Act, should have the liberty to claim deduction under section 48 on the basis of the fair market value of the asset on the prescribed dateThis is not, as the Bombay High Court has felt, reading the option given in section 55(2) subject to section 50 but is reading section 50 as a provision modifying section 48 and thus, bringing the case of such an assessee in the group of exceptions to which section 50(1) is applied and not section 50(2) unless the acquisition is covered by section 49 of the Act. We have felt that there is some sort of excess by the Bombay High Court in calling the judgments of the Gujarat, Allahabad, Kerala and Calcutta High Courts grossly erroneous. In CIT v. Balkrishna Malhotra 1971 AIR(SC) 2219, 1971 (81) ITR 759, 1971 (2) SCC 547 , 1971 (S) SCR 951, the Supreme Court has pointed out that: "interpretation of a provision in a taxing statute rendered years back and accepted and acted upon by the Department should not be easily departed from. It may be that another view of the law is possible but law is not a mere mental exercise. The courts while reconsidering decisions rendered a long time back particularly under taxing statutes cannot ignore the harm that is likely to happen by unsettling law that had been once settled" The doctrine stare decisis is one of policy grounded on theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognised and followed, though later found to be not legally sound, but whether a previous holding of the court shall be adhered to, modified, or overruled is within the court's discretion under the circumstances of case before it. We have for the said reason cause to consider whether to adhere to the long line of decisions of the courts and follow a stare decisis et non quieta movere. We have accepted gracefully the solemn pronouncement of a Division Bench of this court in this behalf in the case of Sundaram Industries Ltd. v. CIT 1986 (159) ITR 646, 1986 (53) CTR 51, 1986 (26) TAXMAN 187 that: "It is now an accepted principle in the matter of construction of an Indian statute that as far as possible, there must be uniformity of construction and if the provisions of law which fall for consideration before the court have already been construed by another High Court or High Courts, unless there are compelling reasons to depart from that view, normally that construction should be accepted" We have, however, found that material facts are not available and it is not possible thus to see how in the case of the assessee, the provision under section 50 of the Act is attracted and that he cannot be granted the option as claimed by him. For the reasons of the principle of law that we have noticed, we have indicated the law to be applied to the facts of the case, but since the facts are not available, we have no option but to remit the case to the Tribunal for a fresh hearing and decision in accordance with law. The case is accordingly remitted to the Tribunal for a fresh hearing and disposal in accordance with law. No costs.