DEPUTY COMMISSIONER OF INCOME-TAX vs JAIN IRRIGATION SYSTEM LTD.,, JALGAON

Income Tax Appellate Tribunal, “B” BENCH, PUNE

Before: SHRI R.S. SYAL & SHRI VIKAS AWASTHY

For Appellant: Shri Prashant Maheshwari

PER VIKAS AWASTHY, JM :

This appeal by the Revenue is directed against the order of Commissioner of Income Tax (Appeals)-2, Nashik dated 17-03-2016 for the assessment year 2008-09.

The brief facts of the case as emanating from records are: The assessee company is engaged in the business of drip irrigation, manufacturing and trading of PVC Sheets, food processing, PE Pipes etc.

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The assessee filed its return of income for the impugned assessment year on 16-10-2009 declaring total income as Nil and carry forward loss to the tune of Rs.1,74,74,91,269/-. The assessment order in the case of assessee for the impugned assessment year was passed u/s. 143(3) of the Act on 19-12-2011. The Assessing Officer assessed total income of the assessee under MAT (section 115JB) provisions at Rs.2,07,35,50,046/-.

Aggrieved against the assessment order, the assessee filed appeal before the Commissioner of Income Tax (Appeals). In First Appellate proceedings, the Commissioner of Income Tax (Appeals) granted part relief to the assessee vide order dated 19-03-2013. Against the additions confirmed, the assessee filed appeal before the Tribunal in ITA No. 1070/PUN/2013. The Tribunal vide order dated 28-02-2018 granted further part relief in respect of additions assailed. In the meantime the Assessing Officer vide order dated 12-04-2013 passed the order giving effect to the order of Commissioner of Income Tax (Appeals). However, while giving effect the Assessing Officer disallowed assessee’s claim of : (i) Carry forward of unabsorbed depreciation pertaining to assessment years 1993-94 to 1999-2000; (ii) Carry forward losses of amalgamating company M/s. Orient Vegetexpro Limited u/s. 72A of the Act; and (iii) Depreciation claim in respect of non-compete fees (an intangible asset).

Aggrieved against the order of Assessing Officer in not giving effect to the order of Commissioner of Income Tax (Appeals) in letter and spirit, the assessee filed appeal before the Commissioner of Income Tax (Appeals). In second round of appeal, the Commissioner of Income Tax (Appeals) allowed the appeal of assessee in toto. Now, the Revenue is in appeal before the

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Tribunal assailing the findings of Commissioner of Income Tax (Appeals) by raising following grounds : “1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the assessee's to carry forward the unabsorbed depreciation loss of Rs.131,63,54,679/- for A.Y.1993-94 to 1999-2000, wi1hout appreciating the fact that the A.O has not allowed the set off in view of the decision of Mumbai Tribunal in the case of Times Guaranty 131 TTJ 257. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the assessee's to carry forward the unabsorbed business loss of Rs.8,24,94,154/- in respect of amalgamating company Orient Vegetexpo Ltd., without appreciating the fact that the assessee does not fulfill the conditions laid down in Clause (b) of Sub section (2) of Section 72A of the Income Tax Act, 1961. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of account of non compete fees claimed by the assessee at Rs.18,28,125/- on intangible asset. 4. On the facts and circumstances of the case and in law, the order of the Ld. CIT(A) be cancelled on the above issue and that of the AO be restored. 5. The appellant craves leave to add, alter, modify, delete amend any of the grounds with prior permission of the Hon’ble Pr. CIT, as per the circumstances of the case. 6. The appellant prays to file any of the additional evidence appropriate to the grounds taken in appeal, with prior permission of the Hon’ble Pr. CIT, as per the circumstances of the case.”

Mrs. Nandia Kanchan representing the Department submitted that the Assessing Officer while giving effect to the order of Commissioner of Income Tax (Appeals) has rightly rejected the claim of carry forward of unabsorbed depreciation for assessment years 1993-94 to 1999-2000 aggregating to Rs.1,31,63,54,679/- by relying on the decision of Mumbai Tribunal Special Bench in the case of Deputy Commissioner of Income Tax Vs. Times Guaranty Limited reported as 131 TTJ 257. The Commissioner of Income Tax (Appeals) has merely on the submissions of assessee has directed the Assessing Officer to allow set off of brought forward unabsorbed depreciation for the assessment years 1993-94 to 1999-2000.

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3.1 The ld. DR further submitted that the Commissioner of Income Tax (Appeals) vide order dated 19-03-2013 had directed the Assessing Officer to allow assessee’s claim of brought forward business loss of amalgamating company M/s. Orient Vegetexpro Limited to be set off against business income of assessee. The Assessing Officer rejected the assessee’s claim as the conditions laid down in section 72A(2) were not fulfilled by the assessee. The Commissioner of Income Tax (Appeals) without appreciating the findings of Assessing Officer has allowed the claim of assessee.

On the other hand Shri Prashant Maheshwari appearing on behalf of the assessee vehemently defended the impugned order. The ld. AR submitted that unabsorbed depreciation of assessment years 1993-94 to 1999-2000 claimed by the assessee has been rightly allowed by the Commissioner of Income Tax (Appeals) by following the decision of Hon’ble Gujarat High Court in the case of General Motors India (P.) Ltd. Vs. Deputy Commissioner of Income Tax reported as 82 DTR 304. The ld. AR further submitted that the Special Bench decision rendered in the case of Deputy Commissioner of Income Tax Vs. Times Guaranty Limited (supra) has been reversed by the Hon’ble Bombay High Court in Income Tax Appeal No. 841 & 842 of 2011 vide order dated 03-08-2018. The ld. AR filed a copy of order of Hon’ble Bombay High Court in the aforesaid appeal.

4.1 In respect of ground No. 2 of the appeal relating to allowability of brought forward business loss of Rs.8,24,94,154/- of amalgamating company M/s. Orient Vegetexpro Limited, the ld. AR submitted that the said company was merged into assessee company w.e.f. 30-08-2006. The assessee claimed brought forward business loss of amalgamating company amounting to Rs.8.25 crores available for set off as per the order of Board of Industrial and Financial Reconstruction (BIFR). The ld. AR referred to

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the order of BIFR dated 15-10-2007 at pages 93 to 98 of the paper book. The ld. AR further submitted that the Director General of Income Tax filed appeal against the order of BIFR before Appellate Authority for Industrial and Financial Reconstruction (AAIFR). The AAIFR vide order dated 23-07-2011 upheld the order of BIFR and allowed the benefit of set off of unabsorbed business losses of amalgamating company to the assessee. The ld. AR referred to AAIFR order dated 23-06-2011 at pages 101 to 118 of the paper book. The ld. AR contended that the Assessing Officer while giving effect to the order of Commissioner of Income Tax (Appeals) disregarded the assessee’s claim of brought forward losses u/s. 72A of the Act without considering the order of BIFR and AAIFR. The ld. AR pointed that the Department had filed Writ Petition before the Hon’ble Delhi High Court against the order of AAIFR and the same was dismissed vide order dated 13-07-2012. The Hon’ble High Court held that BIFR can suo-moto grant benefit u/s. 72A of the Act in case of amalgamation of sick company with another company. The decision of Hon’ble Delhi High Court in the case of Director General of Income Tax Vs. Orient Vegetax Pro Ltd. is reported as 25 taxmann.com 339. Thereafter, the Department filed SLP before the Hon’ble Supreme Court of India and the same was disposed of on the statement of Solicitor General that the Department will approach BIFR for modification of scheme. The ld. AR submitted that in view of the opportunity granted by the Hon’ble Apex Court to the Department, this issue can be restored back to the file of Assessing Officer to decide the issue in line with revised direction of BIFR, if any.

4.2 In respect of ground No. 3 of the appeal relating to addition on account of depreciation on non compete fees, the ld. AR submitted that the assessee has paid non compete fees of Rs.1,30,00,000/- to Teera Technologies (P) Ltd. during the period relevant to the assessment year

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2006-07. The Commissioner of Income Tax (Appeals) held that the assessee is eligible to claim depreciation @ 25% on intangible asset in assessment year 2006-07. The Assessing Officer following the order of Commissioner of Income Tax (Appeals) allowed depreciation @ 25% in the assessment year 2007-08. In the return of income for assessment year 2008-09, the assessee did not claim depreciation on intangible asset (Non- compete fee) as the return of income was filed prior to the receipt of order of Commissioner of Income Tax (Appeals) for assessment year 2006-07. The assessee for the first time made claim of depreciation on intangible asset during the assessment proceedings for assessment year 2008-09. However, the same was rejected. The assessee thereafter raised the issue of depreciation on intangible asset before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) held that non compete fees does not constitute intangible asset and as such no depreciation is allowable. The Assessing Officer while giving effect to the order of Commissioner of Income Tax (Appeals) misunderstood the findings of Commissioner of Income Tax (Appeals) and made addition of Rs.18,28,125/- on account of depreciation claimed on intangible asset, though the same was never claimed in the return of income. The ld. AR submitted that since the assessee had not claimed depreciation in the return of income there was no question of disallowing the same. The Assessing Officer has erred in making addition of depreciation claim. In First Appellate proceedings, the Commissioner of Income Tax (Appeals) has rectified the mistake committed by Assessing Officer while giving effect to the order of Commissioner of Income Tax (Appeals).

We have heard the submissions made by representatives of rival sides and have perused the orders of authorities below. The ground No. 1 of the appeal is with respect to assessee’s claim of carry forward of

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unabsorbed depreciation for the assessment years 1993-94 to 1999-2000. The Department is assailing the relief granted to the assessee by placing reliance on Special Bench decision of the Tribunal in the case of Deputy Commissioner of Income Tax Vs. Times Guarantee Limited (supra). The Commissioner of Income Tax (Appeals) has granted relief to the assessee by following the decision of Hon’ble Gujarat High Court in the case of General Motors India (P.) Ltd. Vs. Deputy Commissioner of Income Tax (supra) wherein it has been held that unabsorbed depreciation can be carried forward and set off against the income of assessee beyond the period of eight years. The CBDT Circular No. 14 of 2001 has clarified that the restriction of eight years for carry forward and set off of depreciation has been dispensed with. The ld. AR of assessee has brought to our notice that the Special Bench decision has been reversed by the Hon’’ble Bombay High Court. The Hon’ble Bombay High Court in appeal titled Times Guarantee Limited Vs. DDIT (supra), after considering the decision in the case of Commissioner of Income Tax Vs. Hindustan Unilever Pvt. Ltd. reported as 394 ITR 73 (Bom) decided the issue in favour of assessee/appellant. Thus, the decision of Special Bench in case of Times Guarantee Limited does not hold water as on today. We do not find any infirmity in the impugned order on this issue. Accordingly, ground No. 1 of the appeal by Revenue is dismissed being devoid of any merit.

In ground No. 2 of the appeal, the Revenue has assailed assessee’s claim of carry forward of unabsorbed business loss of amalgamating company M/s. Orient Vegetexpro Limited and set off of the same against business income of assessee. The provisions of section 72A(2) lays down certain conditions to be complied with before the accumulated loss/unabsorbed depreciation of amalgamating company are carried forward and set off against the business income of amalgamated company.

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A perusal of order dated 12-04-2013 passed by the Assessing Officer giving effect is ambiguous in specifying the conditions as envisaged u/s. 72A(2) of the Act that are not complied with. Similarly, in the impugned order the findings of Commissioner of Income Tax (Appeals) are cryptic on this issue. It is not emanating either from the order of Assessing Officer or from the order of Commissioner of Income Tax (Appeals) the conditions set out u/s. 72A that have been complied/not complied by the assessee. Further, the ld. AR of assessee has brought to our notice that the Revenue is approaching the BIFR for modification of scheme for which the liberty has been granted by the Hon’ble Apex Court. Thus, in view of above facts, we deem it appropriate to restore this issue to the file of Assessing Officer to decide the same afresh by passing speaking order after considering the revised directions of BIFR, if any and after affording reasonable opportunity of hearing to the assessee, in accordance with law. Hence, ground No. 2 of the appeal is allowed for statistical purpose.

The ground No. 3 of the appeal by the Department is in respect of deleting of addition on account of depreciation on non compete fees Rs.18,28,125/-. It is an undisputed fact that the assessee in return of income for the impugned assessment year has not claimed deduction in respect of depreciation on non compete fees (intangible asset). The assessee raised claim of depreciation on intangible asset by placing reliance on the order of Commissioner of Income Tax (Appeals) for assessment year 2006-07 in First Appellate proceedings. The assessee’s claim was rejected. The Assessing Officer while giving effect to the order of Commissioner of Income Tax (Appeals) made addition of the claim made by assessee without realizing the fact that no such claim was made in return of income and the claim made during First Appellate stage was rejected. Since, the claim was not made in the return of income, no addition was

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warranted. We find merit in the submissions of assessee. The findings of Commissioner of Income Tax (Appeals) in deleting the addition are upheld and ground No. 3 of the appeal by the Revenue is dismissed sans merit.

The ground Nos. 4, 5 and 6 raised in the appeal by the Revenue are general in nature, hence, require no adjudication.

In the result, the appeal of Revenue is partly allowed for statistical purpose in the terms aforesaid.

Order pronounced on Friday, the 28th day of June, 2019.

Sd/- Sd/- (R.S. Syal) (Vikas Awasthy) VICE PRESIDENT JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 28th June, 2019 RK आदेश की प्रनिलऱपप अग्रेपषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त (अऩीऱ) / The CIT(A)-2, Nashik 3. 4. The Pr. Commissioner of Income Tax-2, Nashik ववभागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, “बी” बेंच, 5. ऩुणे / DR, ITAT, “B” Bench, Pune. गार्ड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रतत// True Copy// आदेशानुसार / BY ORDER,

तनजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune

DEPUTY COMMISSIONER OF INCOME-TAX vs. JAIN IRRIGATION SYSTEM LTD.,, JALGAON