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Income Tax Appellate Tribunal, “A” Bench, Mumbai
O R D E R Per B.R. Baskaran (AM) :-
The appeal of the assessee is directed against the order dated 11.09.2013 passed by Ld CIT(A)-4, Mumbai and it relates to the assessment year 2007-08. The assessee is aggrieved by the decision of Ld CIT(A) in holding that the unabsorbed depreciation pertaining to AY 1999-2000 to 2001-02 cannot be set off against the Short term capital gain.
None appeared on behalf of the assessee, even though the notice of hearing was sent by registered post on more than one occasion. Hence we proceed to dispose of the appeal ex-parte, without the presence of the assessee.
We heard Ld D.R and perused the record. We notice that the Ld CIT(A) has decided this issue against the assessee by following the decision rendered by Special bench of ITAT in the case of DCIT Vs. Times Guaranty Ltd (ITA No.4917
2 Kaytee cotsynth Industries Ltd.
& 4918/Mum/2008). However, we notice that the Hon’ble Gujarat High Court has taken a different view of the matter in the case of General Motors India P Ltd (354 ITR 244). Since the decision of High Court, being a higher judicial body, is available in the matter, we are of the view that this issue has to be decided in accordance with the decision rendered by Hon’ble High Court. Accordingly we set aside the order passed by Ld CIT(A) and restore all the issues to his file with the direction to adjudicate them afresh by applying the ratio laid down by Hon’ble Gujarat High Court in the above cited case.
In the result, the appeal filed by the assessee is treated as allowed for statistical purposes. Order has been pronounced in the Court on 18.5.2017.