JUDGMENT judgment of court was delivered by Jayant Patel J.-Considering facts and circumstances, Tax Appeal Nos. 817 to 818 of 2013 with Tax Appeal No. 18 of 2014 and Tax Appeal No. 149 of 2014 are detached from group and present appeals shall be separately considered. Both these appeals are admitted on following question of law: "Whether, on facts and in circumstance of case, Appellate Tribunal was right in law in deleting addition made on account of expenses incurred for replacement of membrane cells II, treating same as capital expenditure, by following rule of consistency and without considering issues on merits?" We have heard Mr. Parikh, learned counsel appearing for appellantRevenue and Mr. Shah, learned counsel appearing for respondentassessee. short facts of case appear to be that Assessing Officer, for assessment year 1999-2000, vide order dated March 26, 2002, treated expenditure of Rs. 25,13,20,259 for replacement of remembraning in membrane cell I plant as capital expenditure which was shown by assessee in books of account as revenue expenditure. In appeal, Commissioner of Income-tax (Appeals) confirmed order of Assessing Officer holding that it would be capital expenditure and not revenue expenditure. Tribunal held that for assessment years 199394 and 1995-96, such expenditure were treated as revenue expenditure by Assessing Officer himself and there being no material to make departure from earlier view, rule of consistency should be followed and, consequently, Tribunal allowed appeal. Under circumstances, Revenue has preferred Tax Appeal No. 798 of 2010. In Tax Appeal No. 799 of 2010, same is fact situation except there is change in assessment year of 2000-01 and amount of Rs. 11,44,94,255 and replacement of membrane in plant II. Mr. Parikh, learned counsel appearing for Revenue contended that it was required for Tribunal to consider reasoning recorded by Assessing Officer and, thereafter, Commissioner of Income-tax (Appeals) and then to find out as to whether expenses of replacement of membrane could be said as revenue expenditure or capital expenditure. In absence of such consideration, Tribunal should not have gone just by principle of consistency and allowed appeals. It was submitted that expenditure involved in both appeals in question is huge. Further, life of membrane, even as per assessee, is 3 to 5 years. Resultantly, assessee would be entitled to have benefit spreaded over 3 to 5 years of membrane and, therefore, it has been rightly held by Assessing Officer as well as by Commissioner of Income-tax (Appeals) and Tribunal has committed error in holding against Revenue by treating expenses as revenue expenditure and not capital expenditure. Mr. Parikh, learned counsel also relied upon decision of apex court in case of CIT v. Saravana Spinning Mills P. Ltd. reported in [2007] 293 ITR 201 (SC) and contended that Assessing Officer has referred to said decision and has relied upon same for mentioning that expenditure was capital expenditure and not revenue expenditure. Whereas, Mr. Shah, learned counsel appearing for assessee, contended that rule of consistency should have been adhered to by Department inasmuch as when it is undisputed position that in assessment years of 1993-94 and 1995-96, Revenue itself treated such expenditure as revenue expenditure, in absence of any change in circumstances or any material brought on record, different view could not have been taken. He also relied upon decision of apex court in case of CIT v. Excel Industries Ltd. reported in [2013] 358 ITR 295 (SC) for contending that dual stand on part of Department is impermissible and is rather titled as "flip-flop" conduct of Department. He contended that if Revenue aggrieved by such stand of Assessing Officer for assessment years of 1993-94 and 1995- 96, matter could have been carried further but was not carried and rather was accepted. Once having told that expenditure shall be treated as revenue expenditure, in absence of any material, it would not lie in mouth of Department to contend that same will be treated as capital expenditure. Hence, it was submitted that Tribunal's view is correct and may not be interfered with. We may record that in decision of apex court in case of Saravana Spinning Mills P. Ltd. (supra), apex court observed at paragraph 13 on pages 208 and 209, relevant of which, reads as under: "An allowance is granted by clause (i) of section 31 in respect of amount expended on current repairs to machinery, plant or furniture used for purposes of business, irrespective of whether assessee is owner of assets or has only used them. expression 'current repairs' denotes repairs which are attended to when need for them arises from viewpoint of businessman. word 'repair' involves renewal. However, words used in section 31(i) are'current repairs'. object behind section 31(i) is to preserve and maintain asset and not to bring in new asset. In our view, section 31(i) limits scope of allowability of expenditure as deduction in respect of repairs made to machinery, plant or furniture by restricting it to concept of'current repairs'. All repairs are not current repairs. Section 37(1) allows claims for expenditure which are not of capital nature. However, even section 37(1) excludes those items of expenditure which expressly falls in sections 30 to 36. effect is to delimit scope of allowability of deductions for repairs to extent provided for in sections 30 to 36. To decide applicability of section 31(i) test is not whether expenditure is revenue or capital in nature, which test has been wrongly applied by High Court, but whether expenditure is'current repairs'. basic test to find out as to what would constitute current repairs is that expenditure must have been incurred to'preserve and maintain' already existing asset, and object of expenditure must not be to bring new asset into existence or to obtain new advantage." After observing aforesaid, when apex court further examined facts of said case, it was found that each machine including ring frame was independent and separate machine capable of independent and specific function and, therefore, treated expenditure as capital in nature. Such is not fact situation in present case because no material is referred to by Assessing Officer nor by Commissioner of Income-tax (Appeals) leading to conclusion that membrane itself can be treated as separate and independent machine. Under these circumstances, it appears to us that reliance placed upon decision by Assessing Officer while making departure from earlier view taken was erroneous. Tribunal in impugned order at paragraph No. 11.1 has observed thus: "11.1. aforesaid decision has been followed by hon'ble jurisdictional High Court in their subsequent decision in Lalludas Children Trust v. CIT [2001] 251 ITR 50 (Guj). Similar view has been taken in other decisions relied upon on behalf of assessee as also in several cases including in Arihant Builders, Developers and Investors P. Ltd. v. ITAT [2005] 277 ITR 239 (MP), Asst. CIT v. Gendalal Hazarilal and Co. [2003] 263 ITR 679 (MP), CIT v. Neo Poly Pack P. Ltd. [2000] 245 ITR 492 (Delhi), Dhansiram Agarwalla v. CIT [1996] 217 ITR 4 (Gauhati). CIT v. Shivsagar Estate [2002] 257 ITR 59 (SC), Union of India v. Satish Panalal Shah [2001] 249 ITR 221 (SC). In case of CWT v. M. K. Gupta [1990] 185 ITR 393 (Delhi). Since in case under consideration, Assessing Officer himself has allowed claim in assessment year 1993-94, creating expenditure revenue in nature while no change of facts and circumstances have been pointed out on behalf of Revenue in years under consideration, we are of opinion that Assessing Officer is not justified in departing from his previous decision in assessment year 1993-94, in absence of material circumstances or reasons for such departure. Therefore, ground No. 4 in appeal for assessment year 1999-2000 and ground No. 2 in assessment year 2000-01 are allowed." If observations are further considered in light of abovereferred decision of apex court in case of Excel Industries Ltd. (supra), we do not find that approach on part of Department to take up different stand in absence of any material or valid reason could be said as justified. consistency expected on part of Revenue in taxation matter is not unknown but rather is expected so as to make assessee aware about taxable liability. We do not mean to say that if legal position is changed or there is cogent material available, Revenue cannot take different stand or make valid departure but at same time, in absence of any such circumstances, namely, any material leading to different conclusion or change in legal position, consistency on part of Revenue should be adhered to. Tribunal has taken same view on part of consistency of Department. Hence, we find that same cannot be faulted with. attempt to contend that life of membrane would be spread over from 3 to 5 years or that amount involved for replacement of membrane is huge and, therefore, departure on part of Revenue could be said as justified, in our view, cannot be countenanced for two reasons. One is that amount involved would not make difference for chargeability of tax but nature of expenditure would be relevant for chargeability of tax. It hardly matters whether amount is more or less. Further, on aspect of life of membrane, nothing is referred to by Assessing Officer nor by Commissioner of Income-tax (Appeals) that earlier, such aspect, namely, life of membrane spread over from 3 to 5 years was not considered or it had missed or otherwise. In result, question is answered in favour of assessee against Revenue. Hence, order passed by Tribunal is not interfered with. Both appeals are dismissed accordingly. *** Commissioner of Income-tax v. Gujarat Alkalies and Chemicals Ltd