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Income Tax Appellate Tribunal, KOLKATA ‘A’ BENCH, KOLKATA
Before: Shri P.M. Jagtap & Shri S.S. Viswanethra Ravi
Date of concluding the hearing : March 22, 2016 Date of pronouncing the order : April 06, 2016
O R D E R Per Shri P.M. Jagtap :- This appeal is preferred by the Revenue against the order of the ld. Commissioner of Income Tax (Appeals)-XXIV, Kolkata dated 24.01.2013 and in the solitary ground raised therein, the Revenue has challenged the action of the ld. CIT(Appeals) in deleting the disallowance made by the Assessing Officer on account of the assessee’s claim for set off of unabsorbed depreciation of Rs.64,13,178/-.
2. The assessee in the present case is a Company, which is engaged in the business of manufacturing of Air Filters and Clean Room equipments and accessories. In the assessment completed under section 143(3) vide order dated 04.12.2009, the claim of the assessee for set off of unabsorbed depreciation pertaining to A.Y. 1989-90 to 1991-92 and ./2013 Assessment year: 2007-2008 Page 2 of 7 1993-94 to 1995-96 brought forward was allowed by the Assessing Officer against the business income of the year under consideration, i.e. A.Y. 2007-08. Subsequently, he was of the view that there was a mistake in the order passed under section 143(3) in allowing such set off and the same being apparent from record, he issued a show-cause notice to the assessee requiring it to explain as to why the said mistake should not be rectified under section 154. In reply, the following explanation was offered by the assessee:-
“1. In Finance Act, 2001, there was an modification of section 32 for abolition of restriction of 8 years for carry forward and set off of unabsorbed depreciation with effect from Assessment Year 2002-03. [CBDT Circular No.14 of 2001 dated 19.11.2001]
The amendments made in the Finance Act, 2001 supersedes the earlier restriction for carry forward and set off of unabsorbed depreciation. In view of the above amendments we are enclosing herewith the relevant portions of the Finance Act 2001 and the respective Notes to the Finance Act and Memorandum to the Finance Act for your consideration.
3. It is well settled that the law applicable to any assessment is the law that prevails as on the first day of April of the relevant assessment year. [Jai Ushin Limited Vs. Dy. Commissioner of Income Tax, ITAT-Delhi, 305 ITR (2008) ]. The Order of the Ld. ITAT is attached herewith.
The Legislature consciously dispensed with the restriction of eight years for carry forward and set off of unabsorbed depreciation which was explained by the Central Board of Direct Taxes in its Circular No. 14 of 2001 and thus unabsorbed depreciation carried forward to the assessment year 2002-03 has to be considered as per the provisions as amended by the Finance Act, 2001. [Dy. Commissioner of Income Tax Vs. Andhra Petrochemicals Ltd. ITAT- Visakhapatnam, 314 ITR (2009)]. The Order of the Ld. ITAT and the relevant portion of CBDT Circular is attached herewith”.
The explanation offered by the assessee as above was not found acceptable by the Assessing Officer for the following reasons:- ./2013 Assessment year: 2007-2008 Page 3 of 7
“The contentions in the submission are not tenable. As per the provision of Finance (No.2) Act, 1996, unabsorbed depreciation allowance upto AY. 1996-97 shall be added to the depreciation allowance for the AY. 1997-98 and will be deemed to be the allowable depreciation for the AY. 1997- 98. Carry forward unabsorbed depreciation, if any, is allowed for eight (8) assessment years only. This amendment took effect from AY. 1997-98 and subsequent years. However, in Finance Act, 2001, the Act had dispensed with the restriction of 8 years for carry forward and set off of unabsorbed depreciation w.e.f. AY. 2002-03 and subsequent years. Thus, here in this case, setting off of unabsorbed depreciation for AYs. 1989-90 to 1991-92 and 1993-94 to 1995-96 against income for AY. 2007-08, 1993- 94 to 1995-96 against income for AY. 2007-08 was beyond the stipulated 8 years limit and therefore, was not allowable. In this regard I rely on the decision of the Hon'ble ITAT, Mumbai in the case of M/s. Times Guaranty Ltd. Vide & 4918/Mum/2008”.
Accordingly, an order under section 154 dated 06.05.2011 was passed by the Assessing Officer whereby he disallowed the claim of the assessee for carry forward of unabsorbed depreciation of Rs.64,13,178/- beyond assessment year 2005-06 and setting off the same against the income of the assessee for the year under consideration, i.e. A.Y. 2006-07.
4. Against the order passed by the Assessing Officer under section 154, an appeal was preferred by the assessee before the ld. CIT(Appeals) and after considering the submissions made by the assessee as well as perusing the relevant material on record, the ld. CIT(Appeals) deleted the disallowance made by the Assessing Officer on account of assessee’s claim for set off of brought forward unabsorbed depreciation against the income of the year under consideration by relying on the decision of the Hon’ble Gujarat High Court in the case of General Motors India Pvt. Limited (Special Leave Application No. 1773 of 2012). Aggrieved by the order of the ld. CIT(Appeals), the Revenue has preferred this appeal before the Tribunal. ./2013 Assessment year: 2007-2008 Page 4 of 7
At the time of hearing before us, nobody has appeared on behalf of the respondent-assessee. Even the notice sent to the assessee through Department has come back undelivered from the Assessing Officer with the remark that the assessee-company is not traceable. This appeal of the Revenue is, therefore, being disposed of ex parte qua the respondent- assessee after hearing the arguments of the ld. D.R. and perusing the relevant material available on record. It is observed that the disallowance made by the Assessing Officer on account of assessee’s claim for set off of brought forward unabsorbed depreciation pertaining to the earlier years against the income of the year under consideration has been deleted by the ld. CIT(Appeals) vide his impugned order by relying on the decision of the Hon’ble Gujarat High Court in the case of General Motors India Pvt. Limited (supra), wherein a similar issue was decided in favour of the asseessee by the Hon’ble Gujarat High Court after taking into consideration the relevant provisions of the Act as amended from time to time as well as the Circular issued by the C.B.D.T. clarifying the intention of the relevant amendments. The relevant discussion/observations made by the Hon’ble Gujarat High Court in this context as contained in paragraph nos. 35 to 38 of the judgment are extracted below:-
"35. Section 32(2) of the Act was amended by Finance Act, 2001 and the provision so amended reads as under :- "Where, in the assessment of the assessee, full effect cannot be given to any allowance under sub-section (1) in any previous year, owing to there being no profits or gains chargeable for that previous year, or owing to the profits or gains chargeable for that previous year, owing to the profits or gains chargeable being less than the allowance, then, subject to the provisions of sub- section (2) of section 72 and sub-section (3) of section 73, the allowance or the part of the allowance to which effect has not been given, as the case may be, shall be added to the amount of the allowance for depreciation for the following previous year and deemed to be part of that allowance, or if there is no such allowance for that previous year, be deemed to be allowance of that previous year, and so on for the succeeding previous years. "
./2013 Assessment year: 2007-2008 Page 5 of 7
The purpose of this amendment has been clarified by Central Board of Direct Taxes in the Circular No.14 of 2001. The relevant portion of the said Circular reads as under :-
"Modification of provisions relating to depreciation :- 30.1. Under the existing provisions of section 32 of the Income- tax Act, carry forward and set off of unabsorbed depreciation is allowed for 8 assessment years. 30.2. With a view to enable the industry to conserve sufficient funds to replace plant and machinery, especially in an era where obsolescence takes place so often, the Act has dispensed with the restriction of 8 years for carry forward and set off of unabsorbed depreciation. The Act has also clarified that in computing the profits and gains of business or profession for any previous year, deduction of depreciation under section 32 shall be mandatory. 30.3. Under the existing provisions, no deduction for depreciation is allowed on any motor car manufactured outside India unless it is used (i) in the business of running it on hire for tourists, or (ii) outside in the assessee's business or profession in another country.
30.4. The Act has allowed depreciation allowance on all imported motor cars acquired on or after 1 st April, 2001.
30.5. These amendments will take effect from the 1 s t April, 2002, and will, accordingly, apply in relation to the assessment year 2002-03 and subsequent years. "
The CBDT Circular clarifies the intent of the amendment that it is for enabling the industry to conserve sufficient funds to replace plant and machinery and accordingly the amendment dispenses with the restriction of 8 years for carry forward and set off of unabsorbed depreciation. The amendment is applicable from assessment year 2002-03 and subsequent years. This means that any unabsorbed depreciation available to an assessee on 1st day of April, 2002 (A. Y. 2002-03) will be dealt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001 and not by the provisions of section 32(2) as it stood before the said amendment. Had the intention of the Legislature been to allow the unabsorbed depreciation allowance worked out in A. Y. 1997-98 only for eight subsequent assessment years even after the amendment of section 32(2) by Finance Act, 2001 it would have incorporated a provision to that effect. However, it does not contain any such provision. Hence keeping in view the purpose of ./2013 Assessment year: 2007-2008 Page 6 of 7
amendment of section 32(2) of the Act, a purposive and harmonious interpretation has to be taken. While construing taxing statutes, rule of strict interpretation has to be applied, giving fair and reasonable construction to the language of the section without leaning to the side of assessee or the revenue. But if the legislature fails to express clearly and the assessee becomes entitled for a benefit within the ambit of the section by the clear words used in the section, the benefit accruing to the assessee cannot be denied. However, Circular No.14 of 2001 had clarified that under Section 32(2), in computing the profits and gains of business or profession for any previous year, deduction of depreciation under Section 32 shall be mandatory. Therefore, the provisions of section 32(2) as amended by Finance Act, 2001 would allow the unabsorbed depreciation allowance available in the A. Y. 1997-98, 1999-2000, 2000-01 and 2001-02 to be carried forward to the succeeding years, and if any unabsorbed depreciation or part thereof could not be set off till the A. Y. 2002-03 then it would be carried forward till the time it is set off against the profits and gains of subsequent years.
Therefore, it can be said that, current depreciation is deductible in the first place from the income of the business to which it relates. If such depreciation amount is larger than the amount of the profits of that business, then such excess comes for absorption from the profits and gains from any other business or business, if any, carried on by the assessee. If a balance is left even thereafter, that becomes deductible from out of income from any source under any of the other heads of income during that year. In case there is a still balance left over, it is to be treated as unabsorbed depreciation and it is taken to the next succeeding year. Where there is current depreciation for such succeeding year the unabsorbed depreciation is added to the current depreciation for such succeeding year and is deemed as part thereof If, however, there is no current depreciation for such succeeding year, the unabsorbed depreciation becomes the depreciation allowance for such succeeding year. We are of the considered opinion that any unabsorbed depreciation available to an assessee on 1st day of April 2002 (A. Y. 2002-03) will be dealt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001. And once the Circular No. 14 of 2001 clarified that the restriction of 8 years for carry forward and set off of unabsorbed depreciation had been dispensed with, the unabsorbed depreciation from A.Y. 1997-98 upto the A.Y. 2001-02 got carried forward to the assessment year 2002-03 and became part thereof, it came to be governed by the provisions of section 32(2) as amended by Finance Act, 2001 and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever”.
./2013 Assessment year: 2007-2008 Page 7 of 7
It is thus clear that the issue involved in this appeal of the Revenue is squarely covered in favour of the assessee by the decision of the Hon’ble Gujarat High Court in the case of General Motors India Pvt. Limited (supra) and the ld. D.R. has not been able to dispute this position. He has also not been able to cite any other decision of the Hon’ble High Courts where a different view is taken on this issue which supports the case of the Revenue. We, therefore, find no justifiable reason to interfere with the impugned order of the ld. CIT(Appeals) giving relief to the assessee by relying on the decision of the Hon’ble Gujarat High Court in the case of General Motors India Pvt. Limited (supra) and upholding the same, we dismiss this appeal of the Revenue.
In the result, the appeal filed by the Revenue is dismissed.