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Income Tax Appellate Tribunal, “B” BENCH, PUNE
आदेश / ORDER
PER SUSHMA CHOWLA, JM
The appeal filed by the Revenue is against the order of the Commissioner of Income Tax (Appeals)-7, Pune dated 02.05.2016 relating to assessment year 2007-08 against order passed under section 154 of the Income Tax Act, 1961 ( in short ‘the Act’).
2 ITA No.1644/PUN/2016 A.Y.2007-08
The Revenue has raised following grounds of appeal:
“1.Whether in the facts and circumstances of the case and in law, the Ld.CIT(A) was justified in directing the A.O. to allow set off of unabsorbed depreciation relating to A.Y. 1998-99 to 2001-2002 against the income of A.Y. 2007-08 when as per the provisions of sec.32(2) of the I.T.Act, as applicable for the A.Y.1999-2000 unabsorbed depreciation cannot be set off for a period of more than eight assessment years succeeding the assessment year in which the allowance was first computed? 2. "Whether in the facts and circumstances of the case and in the law, the Ld.CIT(A) was justified in not applying the ratio laid down in the decision of the Ld. ITAT, Special Bench 'E' Mumbai in the case of M/s. Times Guarantee Limited in ITA Nos.4917 & 4918/Mum/2008, the present assessee's case. 3. For the facts and such other reasons as may be urged at the time of hearing, the order of the Ld. Commissioner of (Appeals), Pune may be vacated and that of the Assessing Officer be restored. 4. The appellant craves leave to add, amend or alter any of the above grounds of appeal.
The Ld. AR for the assessee pointed out that the issue raised in the
present appeal is squarely covered by the order of Tribunal in assessee’s own
case relating to assessment year 2008-09. He also pointed out that similar
grounds of appeal as in the present appeal were raised by Revenue in
assessment year 2008-09.
The Ld. DR for the Revenue has placed reliance on the order of
Assessing Officer.
We have heard the rival contentions and perused the record. The issue
raised in the present appeal filed by the Revenue is against the order of CIT(A)
in directing the Assessing Officer to allow set off of unabsorbed depreciation
relating to assessment years 1998-99 to 2001-02, especially in view of the
provision of section 32(2) of the Act.
3 ITA No.1644/PUN/2016 A.Y.2007-08
Briefly in the facts of the case, the assessee had filed return of income on
30.10.2007 declaring total income of Nil as per the regular provisions and
Rs.33,47,76,972/- as per the provisions of MAT. The income of the assessee
company was assessed under section 143(3) on 23.12.2009 at
Rs.66,39,73,544/-. The Assessing Officer issued notice under section 154 of the
Act for rectifying the allowance of Rs.73,51,42,455/- claimed as unabsorbed
depreciation carried forward by the assessee of which Rs.13,92,90,774/- carried
forward as unabsorbed depreciation was from assessment year 1999-2000.
The assessee filed explanation which was rejected by the Assessing Officer and
sum of Rs.13,92,90,774/- was added to the total income of the assessee.
The CIT(A) relying on the order of Tribunal in assessee’s own case for
assessment year 2008-09 allowed the set off of unabsorbed depreciation
pertaining to assessment year 1999-2000 which was disallowed by the
Assessing Officer to be carried forward on the ground that unabsorbed
depreciation pertaining to assessment years 1998-99 to 2001-02 could be
carried forward for eight assessment years only. The Tribunal in ITA
No.911/PN/2013 vide order dated 27.11.2014 had allowed the claim of the
assessee.
We find that the issue raised in the present appeal is squarely covered by
the order of Tribunal in assessee’s own case relating to assessment year 2008-
09 (supra.) wherein the Tribunal had relied on the ratio laid down by the Hon'ble
Gujarat High Court in the case of General Motors India Pvt. Ltd. Vs. DCIT vide
special Civil Application No. 1773/2012 order dated 27.08.2012. The Tribunal
vide para 17 at page 14 to 17 of the order had allowed the claim of the assessee by holding that the issue stands covered in favour of the assessee by the
decision of Hon'ble Gujarat High Court and the decision of Special Bench of the
4 ITA No.1644/PUN/2016 A.Y.2007-08
Tribunal in the case of M/s.Times Guarantee Limited Vs. DCIT reported in 131 TTJ 257 ( MUM-SB) has been overruled. The relevant findings of the order of Tribunal are reproduced by the CIT(A) at page 5 to 8 of the appellate order, which are being referred to, but not being reproduced for the sake of brevity. The issue raised in the present appeal stands squarely covered in favour of assessee by the order of Tribunal in assessee’s own case for assessment year 2008-09 and following the same parity of the reasoning , we uphold the order of CIT(A) and dismiss the grounds of appeal raised by the Revenue.
In the result, appeal of the Revenue is dismissed.
Order pronounced on this 28th day of August, 2018.
Sd/- Sd/- ( D. KARUNAKARA RAO) (SUSHMA CHOWLA) लेखा सद�य/ACCOUNTANT MEMBER �या�यक सद�य/JUDICIAL MEMBER
पुणे / Pune; �दनांक / Dated : 28th August, 2018 SB आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to :
अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT(Appeals)-7, Pune. 4. The CIT-6, Pune. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “बी” ब�च, 5. पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 6.
// True Copy // आदेशानुसार / BY ORDER,
�नजी स�चव /Private Secretary आयकर अपील�य अ�धकरण, पुणे / ITAT, Pune.