V.G. Oak, C.J.
1. This is a reference under the Income-tax Act. Messrs. Kailash Motors, Dehradun, is the assessee. The assessment year is 1961-62.
2. The assessee is a dealer in motor trucks. It has a factory for repairing and servicing trucks sold by it. The cost of the land was Rs. 1,01,254.The cost of the building constructed on this land was Rs. 1,01,102. The total investment on land and superstructure came to Rs. 2,08,356. The assessee claimed depreciation on the entire cost of Rs. 2,08,356 under Section 10(2)(vi) of the Indian Income-tax Act, 1922. The Income-tax Officer was not agreeable to allow any depreciation on the cost of the land. He allowed depreciation on Rs. 1,01,102 representing the cost of the superstructure. This view was upheld in appeal by the Appellate Assistant Commissioner.
3. When the matter went before the Appellate Tribunal, there was difference of opinion between the members. The Judicial Member of the Tribunal held that depreciation could be allowed on the superstructure only, and not on the land. On the other hand, the Accountant Member was of the view that depreciation had to be allowed for land as well as superstructure. The matter was referred to the President of the Tribunal as third Member for hearing the case. He accepted the view taken by the Accountant Member and held that the assessee was entitled to depreciation on the value of the land as well as the value of the superstructure.
4. At the instance of the Commissioner of Income-tax, U.P., the Tribunal has referred the following question of law to this court:
'Whether, on the facts and in the circumstances of the case, depreciation under Section 10(2)(vi) is to be allowed on the superstructure or on the superstructure and the land on which it stands?'
5. This point came up for consideration before the Supreme Court in Commissioner of Income-tax v. Alps Theatre,  65 I.T.R. 377 ;  1 S.C.R. 181 (S.C.).. It was held by the Supreme Court that the word 'building' in Clause (vi) of Sub-section (2) of Section 10 of the Indian Income-tax Act, 1922, means superstructure and does not include the site.
6. In view of the decision of the supreme Court in the case of Alps Theatre, it must be held that the Tribunal was wrong in holding that the assessee was entitled to get allowance for depreciation on land as well as superstructure.
7. Our answer to the question referred to this court is that, on the facts and in the circumstances of the case, depreciation under Section 10(2)(vi) could be allowed only on the superstructure. The question is answered against the assessee. We make no order as to costs in this reference.