JUDGMENT : K.S. Jhaveri, J. 1. By way of this appeal, the assessee has challenged the judgment and order of the Income Tax Appellate Tribunal, Ahmedabad Bench "D", Ahmedabad (For short, "the Tribunal") in ITA No. 703/Ahd/2000 dated 01.12.2006 for the assessment year 1996-97, whereby the appeal filed by the revenue was allowed. 2. At the time of admitting this Appeal, following question of law was framed :- "Whether, in the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in holding that depreciation, whether claimed or not, has to be foisted upon the assessee even prior to insertion of Explanation 5 to S. 32 (1) of the Act with effect from 01/04/2002, while calculating deduction under Chapter VI-A of the Act?" 3. Mr. Soparkar, learned advocate for the appellant submitted that the Tribunal has committed an error while passing the impugned order. He submitted that depreciation cannot be foisted upon the assessee even prior to insertion of Explanation 5 to S. 32 (1) of the Act with effect from 01/04/2002, while calculating deduction under Chapter VI-A of the Act. In support of his submission, he relied upon the following decisions and submitted that the issue involved in this appeal is covered by the following decisions. "(i) Seshasayee Paper and Board Ltd. v. Deputy Commissioner of Income-Tax, reported in [2015] 374 ITR 619 (SC); (ii) Sakun Polymers Ltd. v. Joint Commissioner of Income-tax (Assessment), reported in [2015] 57 taxmann.com 65 (Gujarat); (iii) Tax Appeal No. 93 of 2000 decided on 17.12.2014 by this Court." 4. Mr. Parikh, learned advocate for the respondent supported the impugned decision of the Tribunal and submitted that no error is committed by the Tribunal while passing the impugned order, therefore, this appeal may be dismissed. 5. While deciding the matter, in the case of Seshasayee Paper and Board Ltd. v. Deputy Commissioner of Income-Tax, (supra), the Supreme Court observed that once the entire depreciation, namely, the unabsorbed depreciation allowance of the previous year gets merged into the depreciation of the current year, it would become an integral part thereof. Legal fiction makes it one whole thereby making it possible for the assessee to claim set-off of unabsorbed carried forward depreciation as well. Legal fiction makes it one whole thereby making it possible for the assessee to claim set-off of unabsorbed carried forward depreciation as well. Once the unabsorbed carried forward depreciation has become a part of the depreciation of the current year, it is not open to the assessee to bifurcate the two again and exercise its choice to claim the depreciation of the current year under Section 32 (1) of the Act taking a position that since unabsorbed depreciation of the previous years is not claimed, it cannot be thrust upon the assessee. Applying this ratio, in our view, the Tribunal has committed an error while passing the impugned order and it is held that the depreciation, whether claimed or not, cannot be foisted upon the assessee even prior to insertion of Explanation 5 to S. 32 (1) of the Act with effect from 01/04/2002, while calculating deduction under Chapter VI-A of the Act. Accordingly, this appeal is allowed. The question posed for our consideration is answered in favour of the assessee and against the revenue.