SMT M R PRABHAVATHY vs. THE ASSISTANT COMMISSIONER OF

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR.JUSTICE HEMANT CHANDANGOUDAR I.T.A. NO.9 OF 2019 C/W I.T.A. NO.10 OF 2019 IN I.T.A. NO.9 OF 2019 BETWEEN: 1. THE PR. COMMISSIONER OF INCOME-TAX

5TH FLOOR, BMTC BUILDING

80 FEET ROAD, KORMANGALA

BENGALURU-560095. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX

CIRCLE-1(2)(1), 2ND FLOOR

BMTC BUILDING, 80 FEET ROAD

KORMANGALA, BENGALURU-560095.

... APPELLANTS (BY SRI. SANMATHI E.I. ADV., FOR SRI. ARAVIND K.V. ADV.,) AND: M/S. KIDS KEMP NO.18, RAMANNSHREE ARCADE M.G. ROAD, BENGALURU-560001

... RESPONDENT (BY SRI. A. SHANKAR, SR. COUNSEL A/W SRI. BHAIRAV KUTTAIAH, ADV.,)

2 THIS I.T.A. IS FILED UNDER SECTION 260-A OF I.T.ACT, 1961 ARISING OUT OF ORDER DATED 25.05.2018 PASSED IN M.P.NO.106/BANG/2018 (IN ITA NO.1035/BANG/2016), FOR THE ASSESSMENT YEAR 2009- 10, PRAYING TO:

I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. II. ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE IN M.P.NO.160/BANG/2018 (IN ITA NO.1035/BANG/2016) DATED 25.05.2018 FOR ASSESSMENT YEAR 2009-10 ANNEXURE-C CONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER AND CONFIRM THE ORDER PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(2)(1), BENGALURU. IN I.T.A. NO.10 OF 2019 BETWEEN: 1. THE PR. COMMISSIONER OF INCOME-TAX

5TH FLOOR, BMTC BUILDING

80 FEET ROAD, KORMANGALA

BENGALURU-560095. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX

CIRCLE-1(2)(1), 2ND FLOOR

BMTC BUILDING, 80 FEET ROAD

KORMANGALA, BENGALURU-560095.

... APPELLANTS (BY SRI. SANMATHI E.I. ADV., FOR SRI. ARAVIND K.V. ADV.,)

3 AND: M/S. KIDS KEMP NO.18, RAMANNSHREE ARCADE M.G. ROAD, BENGALURU-560001

... RESPONDENT (BY SRI. A. SHANKAR, SR. COUNSEL A/W SRI. BHAIRAV KUTTAIAH, ADV.,) - - - THIS I.T.A. IS FILED UNDER SECTION 260-A OF I.T.ACT, 1961 ARISING OUT OF ORDER DATED 25.05.2018 PASSED IN M.P.NO.107/BANG/2018 (IN ITA NO.1036/BANG/2016), FOR THE ASSESSMENT YEAR 2010- 11, PRAYING TO:

I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. II. ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE IN M.P.NO.167/BANG/2018 (IN ITA NO.1036/BANG/2016) DATED 25.05.2018 FOR ASSESSMENT YEAR 2010-11 ANNEXURE-C CONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER AND CONFIRM THE ORDER PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(2)(1), BENGALURU. THESE I.T.As. COMING ON FOR FINAL HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

4 JUDGMENT These appeals under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’, for short) have been filed by the revenue against the common order dated 25.05.2018 passed by the Income Tax Appellate Tribunal. ITA No.9/2019 pertains to the Assessment Year 2009-10 whereas ITA No.10/2019 pertains to Assessment Year 2010- 11. The appeals were admitted by a Bench of this Court on the following substantial question of law: "Whether on the facts and in the circumstances of the case and in law, the Tribunal is right in law in setting aside the disallowance of set off of unabsorbed depreciation by following the judgment of Gujarat High Court in the case of GENERAL MOTORS PRIVATE LIMITED., even though the amendments madder to Section 32(2) of the Act which removed the gap of 8 years in allowing set off of unabsorbed depreciation is prospective and effective only from 1-4-2002?" 2. Admittedly, an order was passed by the Tribunal on 06.07.2017 by which the appeal preferred by the revenue was dismissed. Against the aforesaid order, the revenue had filed two miscellaneous petitions on 13.04.2018 in respect of

5 Assessment Years 2009-10 and 2010-11. The aforesaid miscellaneous petitions were required to be filed within a period of six months from the end of the month in which the impugned order was passed. In the instant case, the impugned order was passed on 06.07.2017. Therefore, the petitions under Section 254(2) could have been filed up to 31.01.2018, however, the miscellaneous petitions were filed beyond the period of six months i.e. 13.04.2018 and therefore, the petitions were held to be barred by limitation. The revenue was unable to administer before the Tribunal itself as to how the petitions filed under Section 254(2) of the Act were within the period of limitation as prescribed under Section 254(2) of the Act. In these appeals also, learned counsel for the revenue was unable to point out as to how the miscellaneous petitions filed by the revenue under Section 254(2) of the Act were within the period of limitation. The Tribunal has not dealt with the appeals filed by the revenue on merits and has held the same to be barred by limitation. 3. For the reasons assigned in ITA No.8/2019, the

6 substantial question of law framed by this Court does not arise for consideration. In the result, we do not find any merit in the appeals. The same fail and are hereby dismissed. Sd/- JUDGE Sd/- JUDGE RV