DEPUTY COMMISSIONER OF INCOME-TAX vs. MERCEDES - BENZ INDIA PVT. LTD., PUNE

आदेश आदेश / ORDER आदेश आदेश

PER D. KARUNAKARA RAO, AM :

This appeal filed by the Revenue is against the order of CIT(A)-6, Pune, dated 30-03-2016 for the A.Y. 2006-07.

“1. Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A) was justified in not rejecting the assessee’s claim of carry forward and set off of the unabsorbed depreciation pertaining to A.Y. 1996-97 of Rs.1,61,05,488/- and A.Y. 1997-97 of Rs.5,99,11,218/- in 2006-07. 2. The appellant craves leave to add, amend or alter the above grounds of appeal.”

2 ITA No. 1411/PUN/2016 Mercedes Benz India Pvt. Ltd.,

raised by the Revenue relates to the rejection of claim of carry forward and set

off of unabsorbed depreciation. Further, Ld. Counsel for the assessee

submitted that the present appeal arises from the fresh assessment order

passed u/s.263 r.w.s. 143(3) of the Act. In this regard, Ld. Counsel filed copy

of the order of Tribunal vide ITA No.1203/PUN/2013 decided on 31-07-2015

and submitted that the said revision order of the CIT u/s.263 of the Act stand

quashed. Bringing our attention to the contents of Para No.8 to 10, Ld.

Counsel for the assessee submitted that the said revision order was decided

in favour of the assessee whereby the validity of the order of CIT was decided

against the Revenue. Considering the same, Ld. Counsel submitted that the

fresh assessment order passed by the AO does not have legs to stand.

Consequently, the appeal is required to be decided in favour of the assessee

and against the Revenue.

while the order of Tribunal is dated 31-07-2015, the fresh assessment order

is dated 28-03-2014. The order of CIT(A) order being dated 30-03-2016 is

subsequent to the said order of the Tribunal. The CIT(A) considered the said

order of the Tribunal vide the discussion in Para No.2.1 of his order and held

that the fresh assessment order passed by the AO becomes infructuous. For

the sake of completeness of this order, we reproduce the said finding given by

the CIT(A) here as under :

“2.1 The assessment order was revised by the CIT us/.263(1) holding that the AO has wrongly allowed the set off of unabsorbed depreciation pertaining to A.Y. 1996-97 & 97-98 in the original assessment order in view of the provisions of sec.32 as applicable during the period A.Y. 96-97 to A.Y. 2001-02. The AO gave effect to the CIT(A)’s order and added back the unabsorbed depreciation of A.Y. 96-97 & 97-98 and arrived at the assessed income of Rs.36,88,31,370/- vide order dtd 28/3/2014.

3 ITA No. 1411/PUN/2016 Mercedes Benz India Pvt. Ltd.,

2.2 The company filed appeal against the order u/s.263(1) passed by the CIT-V, Pune. The ITAT ‘A’ Bench, Pune vide order dtd 31/7/2015 in ITA No.1203/PN/2013 for A.Y. 2006-07 held that there is no infirmity in the assessment order passed by the AO allowing the assessee to carried forward unabsorbed depreciation for A.Y. 96-97 & 97-98 to be set off against the profits of the assessee from the business for the A.Y. 2006-07. 2.3 During the course of appellant proceedings, AR Mr. Rajendra Agiwal, CA appeared and filed power of attorney. He made written submissions and filed copy of the ITAT order setting aside the 263(1) order passed by the CIT-V, Pune. As the 263(1) order has been set aside, the consequential assessment order passed by the AO with regard to the issues dealt in the 263(1) order cannot be valid in the eyes of the law. Thus the assessment order passed in consequence to the 263(1) order becomes infructuous.”

From the above, it is evident that the CIT(A) allowed the appeal of the

assessee considering the fact that the revision order u/s.263 was decided in

favour of the assessee. Thus, we are of the opinion that the order of CIT(A) is

fair and reasonable and it does not call for any interference. Accordingly, the

solitary ground raised by the Revenue is dismissed.

Order pronounced on 14th day of August, 2018.

Sd/- Sd/- िवकास अव�थी /VIKAS AWASTHY) (डी डी डी. क�णाकरा राव डी (िवकास अव�थी िवकास अव�थी िवकास अव�थी क�णाकरा राव क�णाकरा राव/D. KARUNAKARA RAO) क�णाकरा राव �याियक सद�य �याियक सद�य �याियक सद�य/JUDICIAL MEMBER लेखा सद�य �याियक सद�य लेखा सद�य लेखा सद�य/ACCOUNTANT MEMBER लेखा सद�य पुणे / Pune; �दनांक / Dated : 14th August, 2018. Satish

आदेश क� �ितिलिप अ�ेिषत आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : आदेश क� �ितिलिप अ�ेिषत आदेश क� �ितिलिप अ�ेिषत अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT (Appeals)-6, Pune. 4. The Pr. CIT-5, Pune. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “ए” ब�च, 5. पुणे / DR, ITAT, “A” Bench, Pune. गाड� फ़ाइल / Guard File. 6. आदेशानुसार / BY ORDER, // True Copy //

व�र� िनजी सिचव / Sr. Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.