PAKO HINDUSTAN, DOMBIVALI V. DCIT CIR 3, KALYAN

CO 176/MUM/2014

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9876 (ITAT-MUMBAI)
• Duration Of Justice: 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 03-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P MEENA A B C D E
• Assessee Lawyers: SUBODH L RATNAPARKHI
• Keywords: Reopening of assessment; Depreciation; Unabsorbed depreciation
• Section: 32; 148

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE S/SHRI VIJAY PAL RAO, JM AND N.K. BILLAIYA, AM , . . , !./ I.T.A. NO.4325 /MUM/2013 ( / ASSESSMENT YEAR : 2005-06 DY. COMMISSIONER OF INCOME TAX CIRCLE -3, 2 ND FLOOR,RANI MANSION, MURBAD ROAD, KALYAN (W) PIN 421 301, DIST THANE. / VS. M/S PAKO HINDUSTAN, PLOT NO. 14, MIDC PHASE II, DOMBIVLI (E), DIST. THANE. # ! ./ PAN : AABFP4037B ( #$ / APPELLANT ) .. ( %&#$ / RESPONDENT ) %& !/C.O. NO. 176/MUM/20 14 ARISING OUT OF ITA NO. 4325/MUM/2013 M/S PAKO HINDUSTAN, PLOT NO. 14, MIDC PHASE II, DOMBIVLI (E), DIST. THANE. / VS. DY. COMMISSIONER OF INCOME TAX CIRCLE -3, 2 ND FLOOR,RANI MANSION, MURBAD ROAD, KALYAN (W) PIN 421 301, DIST THANE. # ! ./ PAN : AABFP4037B CROSS OBJECTOR .. ( %&#$ / RESPONDENT ) !./ I.T.A. NO.4328 /MUM/2013 ( / ASSESSMENT YEAR : 2006-07 DY. COMMISSIONER OF INCOME TAX CIRCLE -3, 2 ND FLOOR,RANI MANSION, MURBAD ROAD, KALYAN (W) PIN 421 301, DIST THANE. / VS. M/S PAKO HINDUSTAN, PLOT NO. 14, MIDC PHASE II, DOMBIVLI (E), DIST. THANE. # ! ./ PAN : AABFP4037B ( #$ / APPELLANT ) .. ( %&#$ / RESPONDENT ) ITA 4325/M/13, CO 176/M/14 & ITA 4328/M13, CO 17 7/M/14 2 %& !/C.O. NO. 177/MUM/20 14 ARISING OUT OF ITA NO. 4328/MUM/2013 M/S PAKO HINDUSTAN, PLOT NO. 14, MIDC PHASE II, DOMBIVLI (E), DIST. THANE. / VS. DY. COMMISSIONER OF INCOME TAX CIRCLE -3, 2 ND FLOOR, RANI MANSION, MURBAD ROAD, KALYAN (W) PIN 421 301, DIST THANE. # ! ./ PAN : AABFP4037B CROSS OBJECTOR .. ( %&#$ / RESPONDENT ) ASSESSEE BY SHRI SUBODH L. RATNAPARKHI DEPARTMENT BY SHRI O.P. MEENA A B C D E / DATE OF HEARING : 11-9-2014 FGHI C D E / DATE OF PRONOUNCEMENT : 11-9-2014 [ L / O R D E R PER BENCH . : THESE APPEALS AND CROSS OBJECTIONS BY THE REVENUE A ND THE ASSESSEE ARE PREFERRED FOR ASSESSMENT YEARS 2005-06 AND 2006 -07. AS COMMON ISSUES ARE INVOLVED IN THE REVENUES APPEAL AND ASSESSEES CROSS OBJECTIONS, THEY WERE HEARD TOGETHER AND DISPOSE OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 2. THE COMMON GROUND IN REVENUES APPEALS RELATES T O THE ALLOWING OF THE CLAIM OF SET OFF OF UNABSORBED DEPRECIATION FOR ASS ESSMENT YEARS 1995-96 AND 1996-97 AGAINST THE INCOME AVAILABLE FOR ASSESSMENT YEARS 2005-06 AND 2006-07. IT IS THE CLAIM OF THE REVENUE THAT THE SE T OFF IS AVAILABLE ONLY FOR EIGHT YEARS AS PER INCOME TAX ACT, 1961. 3. THIS ISSUE IS NO MORE RES INTEGRA AS IT HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS OF HONBLE GUJARAT HIGH C OURT IN THE CASE OF GENERAL MOTORS INDIA (P) LTD. VS. DCIT, (2013) 354 ITR 244 (GUJ.), SYNBIOTICS ITA 4325/M/13, CO 176/M/14 & ITA 4328/M13, CO 17 7/M/14 3 LTD. VS. ACIT, [2014] 46 TAXMANN.COM 87 (GUJARAT) A ND CIT VS. GUJARAT THEMIS BIOSYN LTD., [2014] 44 TAXMANN.COM 204 (GUJA RAT) FOLLOWED BY TRIBUNAL, MUMBAI BENCH IN THE CASE OF DCIT VS. BAJA J HINDUSTAN LTD., [2014] 47 TAXMANN.COM 333 (MUMBAI-TRIB), HINDUSTAN UNILEVE R LTD. VS. ACIT, [2012] 28 TAXMANN.COM 142 (MUMBAI TRIB) AND IN TH E CASE OF M/S NELCO LIMITED VS. DCIT IN ITA NO. 2306/MUM/2012 FOR A.Y. 2008-09 ORDER DATED 14-10-2013. 4. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT O F THE JUDICIAL DECISIONS CITED HEREINABOVE, WE ARE OF THE CONSIDERED OPINION THAT ANY UNABSORBED DEPRECIATION AVAILABLE TO AN ASSESSEE ON IST DAY OF APRIL 2002 (A.Y. 2003-04) WILL BE DEALT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE ACT, 2001 AND ONCE THE CIRCULAR NO. 14 OF 2 001 CLARIFIED THAT THE RESTRICTION OF EIGHT YEARS FOR CARRY FORWARD AND SE T OFF OF UNABSORBED DEPRECIATION HAD BEEN DISPENSED WITH, THE UNABSORBE D DEPRECIATION UPTO THE A.YS. 2005-06 AND 2006-07 GOT CARRIED FORWARD TO TH E ASSESSMENT YEARS 2005-06 AND 2006-07 AND BECAME PART THEREOF, IT CAM E TO BE GOVERNED BY THE PROVISIONS OF SECTION 32 (2) AS AMENDED BY FINANCE ACT 2001 AND WAS AVAILABLE FOR CARRY FORWARD AND SET OFF AGAINST THE PROFITS AND GAINS OF THE YEAR UNDER CONSIDERATION WITHOUT ANY LIMIT WHATSOEVER. T HE APPEALS FILED BY THE REVENUE ARE ACCORDINGLY DISMISSED. 5. IN ITS CROSS OBJECTIONS, THE ASSESSEE HAS CHALL ENGED THE REOPENING OF THE ASSESSMENT BY ISSUE OF NOTICE U/S 148 OF THE IN COME TAX ACT, 1961. SINCE WE HAVE DISMISSED THE APPEALS OF THE REVENUE ON MER ITS OF THE CASE, WE DO NOT FIND IT NECESSARY TO DECIDE THIS ISSUE OF THE V ALIDITY OF THE REOPENING OF ASSESSMENT. IN OUR CONSIDERED OPINION, THE CROSS OB JECTIONS OF THE ASSESSEE BECOME OTIOSE. ITA 4325/M/13, CO 176/M/14 & ITA 4328/M13, CO 17 7/M/14 4 6. IN THE RESULT, APPEALS FILED BY THE REVENUE AS W ELL AS CROSS OBJECTIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH SEPTEMBER, 2014. L C FGHI A M N!O 11-9-2014 G C PB SD/- SD/- (VIJAY PAL RAO) (N.K. BILLAIYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER A !B MUMBAI ; N! DATED 11-09-2014 [ .../ R.K. , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. #$ / THE APPELLANT 2. %&#$ / THE RESPONDENT. 3. A XD ( ) / THE CIT(A) CONCERNED, MUMBAI 4. A XD / CIT- CONCERNED, MUMBAI 5. [P %D\] , E \] I , A !B / DR, ITAT, MUMBAI C BENCH 6. P_ `B / GUARD FILE. ! ( / BY ORDER, &D %D //TRUE COPY// )/(* + ( DY./ASSTT. REGISTRAR) , A !B / ITAT, MUMBAI