JUDGMENT N. Kumar, J.—This appeal is by the revenue challenging the order passed by the Tribunal, which allowed the claim of the assessee to carry forward depreciation. The Assessee Company has set up a 100% export oriented unit. The assessee exercised its option to claim exemption under Section 10B of the Income-tax Act for the assessment year 1996-97. While computing the assessment, the Assessing Officer was of the view that the unabsorbed depreciation of the earlier years, would acquire the character of the current years depreciation and the same has to be set off against the current year's business income in arriving at the profits of the export oriented unit, income of which is claimed to be exempted under Section 10B(1) of the Act. Therefore, the Assessing Officer denied the claim of the assessee to carry forward depreciation. The assessee preferred an appeal, which came to be dismissed. It is against the said order, the assesses preferred an appeal to the Tribunal. The Tribunal following the judgment rendered by ITAT, Bangalore Bench in the case of Himatsingika Seida Ltd. vs. Assistant, CIT (1997) 63 ITD 290 held that the Assessing Officer was not justified in denying the claim of the assessee to carry forward depreciation and thus allowed the appeal of the assessee and granted the deduction. Aggrieved by the same, the revenue is in appeal. 2. The judgment of the ITAT, Bangalore Bench in the case of Himatsingika Seida Ltd. (supra), was challenged by the revenue before this Court. This Court by its order dated 4th August 2006 passed in ITRC No. 350/1998 held that the Tribunal was not right in law in holding that the assessment order passed by the Assessing Officer allowing the claim of the assessee for adjustment of the unabsorbed depreciation against the other business income once again to show nil tax liability and it held that the said order is erroneous and prejudicial to the interests of the Revenue and accordingly, it set aside the judgment of the Tribunal. 3. In view of the aforesaid admitted position, following the judgment of this Court in the aforesaid case, the order passed by the Tribunal also requires to be set aside as the said judgment of the Tribunal is based on the order passed in the earlier said case, accordingly, it is hereby set aside. 3. In view of the aforesaid admitted position, following the judgment of this Court in the aforesaid case, the order passed by the Tribunal also requires to be set aside as the said judgment of the Tribunal is based on the order passed in the earlier said case, accordingly, it is hereby set aside. However, it is pointed out that the said order of the High Court is under challenge before the Apex court in Appeal Civil No. 1501/2008 and this Court has to await that decision in the said case. We are not inclined to accept the contention. However, it will not be proper for us to make the assessee to also approach the Apex Court against our order. In these circumstances, we deem it proper to set aside the order of the Tribunal and remand the matter back to the Assessment Officer with a direction to him to await the judgment of the Apex Court in the aforesaid case and in the event the Apex Court upholds the order passed by this Court, only then to proceed to recover the amount due in terms of the assessment order. However, if the Apex Court were to set aside the order passed by this Court, then the order of the Tribunal which we have set aside today, stands restored and the assessee is entitled to the benefit of the same. In our considered view this would meet the ends of justice. Hence, we pass the following order: (i) The appeal is allowed. (ii) The impugned order dated 25.11.2005 passed by Appellate Commissioner confirming the order passed by the Deputy Commissioner of Income Tax, (Asst.), Special Range-4, Bangalore in ITA. No. 118/BANG/2003 is set aside subject to the conditions stipulated above.