EPCOS India Private Limited, Nadia V. D.C.I.T Cir - 11,kolkata, Kolkata

CO 57/KOL/2013

• Counselvise Citation: [2016] 119 COUNSELVISE.COM (IT) 3253 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 11-04-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 20-05-2013
• Court: TRIBUNAL
• Department Lawyers: SALLONG YADEN ADD L; RAJAT SUBHRA BISWASCITD R
• Keywords: Business income; Depreciation; Unabsorbed depreciation; Reassessment proceedings
• Section: 143(3); 142(1); 32; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A, KO LKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI WAS EEM AHMED, AM] ITA NOS.815&816/KOL/2013 ASSESSMENT YEARS : 2004-05 & 2005-06 D.C.I.T., CIRCLE-11, . -VERSUS- M/S.EPCOS INDIA PVT. LTD. KOLKATA KOLKATA (PAN:AAACI6950Q) (APPELLANT ) (RESPONDENT) C.O.NOS.57&58/KOL/2013 A/O ITA NOS.815&816KOL/2013 ASSESSMENT YEARS : 2004-05&2005-06 M/S. EPCOS INDIA PVT. LTD. . -VERSUS- D.C.I.T., CI RCLE-11, KOLKATA KOLKATA (PAN AAACI6950Q) (CROSS OBJECTOR) (RESPONDENT) FOR THE DEPARTMENT : SHRI RAJAT SUBHRA BISWAS,CIT,D R & SALLONG YADEN, A DDL. CIT, SR.DR FOR THE ASSESSEE : SHRI ANUP SINHA, FCA DATE OF HEARING : 11.04.2016. DATE OF PRONOUNCEMENT : 11.05.2016 ORDER PER SHRI N.V.VASUDEVAN, JM ITA NO.815 & 816/KOL.13 ARE APPEALS BY THE REVENUE AGAINST TWO ORDERS BOTH DATED 18.12.2012 RELATING TO THE ASSESSMENT OF THE ASSESSEE FOR AY 2004-05 & 2005- 06, RESPECTIVELY. THE ASSESSEE HAS FILED CROSS-OBJ ECTIONS AGAINST THE VERY SAME ORDER OF THE CIT(A). ITA NO.815 & 816/KOL/13: (REVENUES APPEALS) 2. THE ISSUE RAISED BY THE REVENUE IN BOTH THE APPE ALS ARE IDENTICAL AND ARISE OUT OF IDENTICAL FACTS AND CIRCUMSTANCES. THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN ITA NO.815/KOL/13 READS AS FOLLOWS: I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 2 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , LD. CIT(APPEAL) WAS NOT JUSTIFIED IN ALLOWING THE CARRY FORWARD OF UNABSORBED DEPRECIATI ON FOR THE A.Y. 1994-95, 1995-96 & 1996-97 AGGREGATING RS.8,77,48,743/- WITHOUT APPREC IATING THE OBSERVATION PUT FORWARD BY THE ASSESSING OFFICER. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(APPEAL) WAS NOT JUSTIFIED IN ALLOWING THE CARRY FORWARD OF UN ABSORBED DEPRECIAT ION FOR THE A.Y. 1994-95, 1995-96 & 1996-97 AGGREGATING RS.8,77,48,743/- IN VIEW OF T HE AMENDMENT BY THE FINANCE ACT, 2001 WITH EFFECT FROM 01.04.2002 SUBSTITUTING THE O LD SECTION 32(2) OF THE I.T. ACT, 1961. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO IN VIEW OF AMENDED PROVISION OF LAW, THE UNABSORBED DEPRECIATION UPTO ASSESSMENT YEAR 1996-97 WAS ELIGIBLE FOR SET OFF, UP TO ASSESSMENT YEAR 2004-05 ONLY. 3. THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN ITA NO.816/KOL/13 READS AS FOLLOWS: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(APPEAL) WAS NOT JUSTIFIED IN ALLOWING THE CARRY FORWARD OF UNABSORBED DEPRECIATI ON FOR THE A.Y. 1997-98 AMOUNTING RS.3,24,68,197/- WITHOUT APPRECIATING THE OBSERVATI ON PUT FORWARD BY THE ASSESSING OFFICER. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(APPEAL) WAS NOT JUSTIFIED IN ALLOWING THE CARRY FORWARD OF UNABSORBED DEPRECIATI ON FOR THE A.Y. 1997-98 AMOUNTING RS.3,24,68,197/- IN VIEW OF THE AMENDMENT BY THE FI NANCE ACT, 2001 WITH EFFECT FROM 01.04.2002 SUBSTITUTING THE OLD SECTION 32(2) OF TH E I.T. ACT, 1961. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO IN VIEW OF AMENDED PROVISION OF LAW, UNABSORBED DEPRECIATION FROM ASS ESSMENT YEAR 1997-98 TO 2001-02 WAS ELIGIBLE FOR SET OFF ONLY AGAINST THE INCOME UN DER HEAD PROFIT AND GAINS OF BUSINESS OR PROFESSION FOR A PERIOD NOT MORE THAN EIGHT ASS ESSMENT YEARS. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO IN VIEW OF AMENDED PROVISION OF LAW, THE UNABSORBED DEPRECIATION UPTO ASSESSMENT YEAR 1997-98 WAS ELIGIBLE FOR SET OFF, UP TO ASSESSMENT YEAR 2004-05 ONLY. 4. THE ASSESSEE IS A SUBSIDIARY OF EPCOS A.G. GER MANY AND DURING THE ASSESSMENT YEAR UNDER CONSIDERATION THE RESPONDENT WAS ENGAGED IN THE BUSINESS OF MANUFACTURING AND SALE OF SOFT FERRITES COMPONENTS. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2004-05 ON 01-11-2004 DECLARING A TOTAL LOSS OF RS. 18,67,08,427/-. IN THE SAID RETURN THE ASSESSEE CLAIMED, INTER ALI A, CARRY FORWARD UNABSORBED DEPRECATION FOR AY. 1994-95, AY. 1995-96 AND AY. 19 96-97 AS PER FOLLOWING DETAILS: SI. NO. ASSESSMENT YEAR AMOUNT (RS.) 1 1994-95 3,18,90,852 2 1995-96 2,08,68,162 3 1996-97 3,49,89,729 TOTAL 8,77,48,743 I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 3 SINCE THE TOTAL INCOME WAS NEGATIVE IT WAS NOT POSS IBLE FOR THE RESPONDENT TO CLAIM SET OFF OF THE AFORESAID UNABSORBED DEPRECIATION AGAINS T THE INCOME FOR THE RELEVANT YEAR AND HENCE IN THE RETURN THE SAME WAS CLAIMED TO BE CARRIED FORWARD. THE DETAILS OF BROUGHT FORWARD LOSS IN RESPECT OF THE AFORESAID AS SESSMENT YEARS HAVE BEEN REPORTED BY THE TAX AUDITORS IN ANNEXURE - XI OF THE TAX AUD IT REPORT FOR THE RELEVANT YEAR. 5. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES UNDER SECTION 143(2) AND 142(1) OF THE ACT WERE ISSUED TO THE RESPONDENT. THE ASSESSME NT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 27-12-2006 DETER MINING A TOTAL LOSS OF RS. 18,01,39,205/-. IN THE AFORESAID ORDER UNDER SECTIO N 143(3) THE LD. ASSISTANT COMMISSIONER OF INCOME TAX (HEREINAFTER REFERRED TO AS THE 'THEN AO') HAD DISALLOWED CERTAIN EXPENSES AND/OR CLAIMS OF THE RESPONDENT. I N THE SAID ORDER THE THEN AO HAD NOT DISCUSSED ABOUT THE ALLOWABILITY OF CARRY FORWA RD OF THE AFORESAID UNABSORBED DEPRECIATION. SUBSEQUENTLY, THE LD. INCOME TAX OFFI CER (HEREINAFTER REFERRED TO AS 'AO') ISSUED NOTICE UNDER SECTION 148 ON 31-03-2011 INITIATING REASSESSMENT PROCEEDINGS. THEREAFTER, AS PER SPECIFIC REQUEST OF THE RESPONDENT, REASONS FOR RE- OPENING OF ASSESSMENT WERE PROVIDED TO THE RESPONDE NT VIDE LETTER DATED 19-10-2011. IN THE SAID LETTER THE AO HAS CONTENDED THAT THE RE SPONDENT IS NOT ENTITLED TO CARRY FORWARD THE DEPRECIATION LOSS FOR AY. 1994-95~ 996- 97 AS PER THE AMENDED PROVISIONS APPLICABLE FOR THE SAID ASSESSMENT YEAR. 6. FOR A.Y.2005-06 THE ASSESSEE FILED ITS ORIGINA L RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ON 31-10-2005 D ECLARING A TOTAL LOSS OF RS. 18,85,68,536/-. SUBSEQUENTLY, THE SAID RETURN WAS R EVISED ON 30-03-2007 DECLARING A TOTAL LOSS OF RS. 19,97,11,536/-. IN THE SAID RETUR N THE APPELLANT HAD CLAIMED, INTER ALIA, CARRY FORWARD OF UNABSORBED DEPRECATION FOR A. Y. 1 997-98 AMOUNTING TO RS. 3,24,68,197/-. SINCE THE TOTAL INCOME WAS NEGATIVE IT WAS NOT POSSIBLE FOR THE RESPONDENT TO CLAIM SET OFF OF THE AFORESAID UNABSO RBED DEPRECIATION AGAINST THE INCOME FOR THE RELEVANT YEAR AND HENCE IN THE RETUR N THE SAME WAS CLAIMED TO BE CARRIED FORWARD. THE DETAILS OF BROUGHT FORWARD LOS S IN RESPECT OF THE AFORESAID I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 4 ASSESSMENT YEAR HAVE BEEN REPORTED BY THE TAX AUDIT ORS IN ANNEXURE - X OF THE TAX AUDIT REPORT FOR THE RELEVANT YEAR. 7. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U NDER SECTION 143(2) AND 142(1) OF THE ACT WERE ISSUED TO THE RESPONDENT. THE ASSESSME NT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 16-12-2008 DETER MINING A TOTAL LOSS OF RS. 19,75,82,785/-. IN THE AFORESAID ORDER UNDER SECTIO N 143(3) THE LD. DEPUTY COMMISSIONER OF INCOME TAX (HEREINAFTER REFERRED TO AS THE 'THEN AO') HAD DISALLOWED CERTAIN EXPENSES AND/OR CLAIMS OF THE RESPONDENT. I N THE SAID ORDER THE THEN AO HAD NOT DISCUSSED ABOUT THE ALLOWABILITY OF CARRY FORWA RD OF THE AFORESAID UNABSORBED DEPRECIATION. SUBSEQUENTLY, THE LD. INCOME TAX OFFI CER (HEREINAFTER REFERRED TO AS 'AO') HAS ISSUED NOTICE UNDER SECTION 148 ON 31-03- 2011 INITIATING REASSESSMENT PROCEEDINGS. THEREAFTER, AS PER SPECIFIC REQUEST OF THE RESPONDENT, REASONS FOR RE- OPENING OF ASSESSMENT WERE PROVIDED TO THE RESPONDE NT VIDE LETTER DATED 19-10-2011. IN THE SAID LETTER THE AO HAS CONTENDED THAT THE RE SPONDENT IS NOT ENTITLED TO CARRY FORWARD THE DEPRECIATION LOSS FOR A.Y. 1997-98 AS P ER THE AMENDED PROVISIONS APPLICABLE FOR THE SAID ASSESSMENT YEARS 8. TO APPRECIATE THE ISSUE THAT ARISES FOR CONSIDERATI ON IN THESE APPEALS, THE PROVISIONS OF SEC.32(2) OF THE INCOME TAX ACT, 1961 (ACT) AS I T EXISTED AT THREE DIFFERENT POINT OF TIME NEED TO BE SET OUT. THE PROVISIONS OF S. 32(2 ) PRIOR TO THE AMENDMENT MADE BY THE FINANCE (NO. 2) ACT, 1996 W.E.F. 1ST APRIL, 199 7 (HEREINAFTER CALLED THE 'FIRST PERIOD') READ AS UNDER : '(2) WHERE, IN THE ASSESSMENT OF THE ASSESSEE, FULL EFFECT CANNOT BE GIVEN TO ANY ALLOWANCE UNDER CL. (II) OF SUB-S. (1) IN ANY PREVI OUS YEAR, OWING TO THERE BEING NO PROFITS OR GAINS CHARGEABLE FOR THAT PREVIOUS YE AR, OR OWING TO THE PROFITS OR GAINS CHARGEABLE BEING LESS THAN THE ALLOWANCE, THE N, SUBJECT TO THE PROVISIONS OF SUB-S. (2) OF S. 72 AND SUB-S. (3) OF S. 73, THE ALLOWANCE OR PART OF THE ALLOWANCE TO WHICH EFFECT HAS NOT BEEN GIVEN, AS TH E CASE MAY BE, SHALL BE ADDED TO THE AMOUNT OF THE ALLOWANCE FOR DEPRECIATI ON FOR THE FOLLOWING PREVIOUS YEAR AND DEEMED TO BE PART OF THAT ALLOWAN CE, OR IF THERE IS NO SUCH ALLOWANCE FOR THAT PREVIOUS YEAR, BE DEEMED TO BE T HE ALLOWANCE FOR THAT PREVIOUS YEAR, AND SO ON FOR THE SUCCEEDING PREVIOU S YEARS.' I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 5 9. A GLANCE AT THIS PROVISION INDICATES THAT IF TH ERE ARE SUFFICIENT PROFITS OR GAINS TO ADJUST FULL DEPRECIATION ALLOWANCE FOR THE CURRENT YEAR UNDER S. 32(1) OF THE ACT, THEN IT WILL BE ADJUSTED ACCORDINGLY. IF HOWEVER THERE ARE NO PROFITS OR GAINS AT ALL OR THEY ARE INSUFFICIENT TO ACCOMMODATE THE DEPRECIATION ALLOWA NCE FOR THE YEAR IN FULL, THEN SUBJECT TO THE PROVISIONS OF SS. 72(2) AND 73(3), T HE AMOUNT OF SUCH UNADJUSTED ALLOWANCE, TO WHICH EFFECT HAS NOT BEEN GIVEN, SHAL L BE ADDED TO THE AMOUNT OF DEPRECIATION ALLOWANCE FOR THE FOLLOWING PREVIOUS Y EAR AND DEEMED TO BE PART OF DEPRECIATION ALLOWANCE FOR THAT PREVIOUS YEAR AND S O ON FOR ETERNITY. 10. THE PROVISIONS OF S. 32(2) AS SUBSTITUTED BY T HE FINANCE (NO. 2) ACT, 1996 W.E.F. 1ST APRIL, 1997 (HEREINAFTER CALLED THE 'SECOND PER IOD') READ AS UNDER : '(2) WHERE IN THE ASSESSMENT OF THE ASSESSEE FULL E FFECT CANNOT BE GIVEN TO ANY ALLOWANCE UNDER CL. (II) OF SUB-S. (1) IN ANY PREVI OUS YEAR OWING TO THERE BEING NO PROFITS OR GAINS CHARGEABLE FOR THAT PREVIOUS YEAR OR OWING TO THE PROFITS OR GAINS BEING LESS THAN THE ALLOWANCE, THEN, THE ALLOWANCE OR THE PART OF ALLOWANCE TO WHICH EFFECT HAS NOT BEEN GIVEN (HEREINAFTER REFERR ED TO AS UNABSORBED DEPRECIATION ALLOWANCE), AS THE CASE MAY BE, (I) SHALL BE SET OFF AGAINST THE PROFITS AND GAINS, IF ANY, OF ANY BUSINESS OR PROFESSION CARRIED ON BY HIM AND ASSESSABLE FOR THA T ASSESSMENT YEAR; (II) IF THE UNABSORBED DEPRECIATION ALLOWANCE CANNO T BE WHOLLY SET OFF UNDER CL. (I), THE AMOUNT NOT SO SET OFF SHALL BE SET OFF FROM THE INCOME UNDER ANY OTHER HEAD, IF ANY, ASSESSABLE FOR THAT ASSESSMENT YEAR; (III) IF THE UNABSORBED DEPRECIATION ALLOWANCE CANN OT BE WHOLLY SET OFF UNDER CL. (I) AND CL. (II), THE AMOUNT OF ALLOWANCE NOT SO SET OF F SHALL BE CARRIED FORWARD TO THE FOLLOWING ASSESSMENT YEAR AND (A) IT SHALL BE SET OFF AGAINST THE PROFITS AND GAI NS, IF ANY, OF ANY BUSINESS OR PROFESSION CARRIED ON BY HIM AND ASSESSABLE FOR THA T ASSESSMENT YEAR; (B) IF THE UNABSORBED DEPRECIATION ALLOWANCE CANNOT BE WHOLLY SO SET OFF, THE AMOUNT OF UNABSORBED DEPRECIATION ALLOWANCE NOT SO SET OFF SHALL BE CARRIED FORWARD TO THE FOLLOWING ASSESSMENT YEAR NOT BEING MORE THAN EIGHT ASSESSMENT YEARS IMMEDIATELY SUCCEEDING THE ASSESSMENT YEAR FO R WHICH THE AFORESAID ALLOWANCE WAS FIRST COMPUTED : PROVIDED THAT THE BUSINESS OR PROFESSION FOR WHICH THE ALLOWANCE WAS ORIGINALLY COMPUTED CONTINUED TO BE CARRIED ON BY H IM IN THE PREVIOUS YEAR RELEVANT FOR THAT ASSESSMENT YEAR : PROVIDED FURTHER THAT THE TIME-LIMIT OF EIGHT ASSES SMENT YEARS SPECIFIED IN SUB-CL. (B) SHALL NOT APPLY IN THE CASE OF A COMPAN Y FOR THE ASSESSMENT YEAR BEGINNING WITH THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 6 SAID COMPANY HAS BECOME A SICK INDUSTRIAL COMPANY U NDER SUB-S. (1) OF S. 17 OF THE SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) ACT, 1985 (1 OF 1986) AND ENDING WITH THE ASSESSMENT YEAR RELEVANT TO THE PRE VIOUS YEAR IN WHICH THE ENTIRE NET WORTH OF SUCH COMPANY BECOMES EQUAL TO OR EXCEE DS THE ACCUMULATED LOSSES. EXPLANATION.FOR THE PURPOSES OF THIS CLAUSE, 'NET WORTH' SHALL HAVE THE MEANING ASSIGNED TO IT IN CL. (GA) OF SUB-S. (1) OF S. 3 OF THE SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) ACT, 1985 (1 OF 1986).' 11. A BARE PERUSAL OF THIS PROVISION INDICATES THA T WHERE THE AMOUNT OF DEPRECIATION ALLOWANCE UNDER S. 32(1) FOR THE CURRENT YEAR OF A BUSINESS C ANNOT BE ABSORBED FULLY OR PARTLY DUE TO INADEQUACY OF PROFITS OR GAINS FROM S UCH BUSINESS, THEN SUCH ALLOWANCE OR PART OF IT WHICH REMAINED UNABSORBED, IS TO BE R EFERRED TO AS 'UNABSORBED DEPRECIATION ALLOWANCE'. SUCH UNABSORBED DEPRECIATI ON ALLOWANCE IS TO BE SET OFF FIRSTLY AGAINST THE INCOME UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION' FROM ANY OTHER BUSINESS OR PROFESSION CARRIED ON BY THE ASSESSEE FOR THAT ASSESSMENT YEAR. IF SUCH BUSINESS PROFIT IS ALSO INSUFFICIENT TO ABSORB THE UNABSORBED DEPRECIATION ALLOWANCE, THEN THE REMAINING AMOUNT SHALL BE SET O FF AGAINST INCOME UNDER OTHER HEADS, AS MENTIONED IN S. 14 OF THE ACT ASSESSABLE FOR THAT ASSESSMENT YEAR. THIS EXERCISE OF SETTING OFF THE UNABSORBED DEPRECIATION ALLOWANCE AGAINST ANY HEAD OF INCOME IS RESTRICTED TO THE YEAR IN WHICH THE CLAIM FOR DEPRECIATION HAS ARISEN UNDER S. 32(1). IF HOWEVER INCOME OF THE ASSESSEE UNDER ALL HEADS IS INSUFFICIENT TO ABSORB THE UNABSORBED DEPRECIATION ALLOWANCE, THEN SUCH AMOUNT IS TO BE CARRIED FORWARD TO THE FOLLOWING ASSESSMENT YEAR TO BE SET OFF AGAINST THE INCOME ARISING UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. NOT ONLY THAT, THE BUSINESS OR PROFESSION FOR WHICH THE ALLOWANCE WAS COMPUTED SHOULD CONTINU E TO BE CARRIED ON BY THE ASSESSEE DURING THE PREVIOUS YEAR RELEVANT TO ASSES SMENT YEAR IN WHICH THE SET OFF IS CLAIMED. THE EXERCISE OF CARRYING FORWARD SUCH UNAB SORBED DEPRECIATION ALLOWANCE IS TO BE CONTINUED UPTO EIGHT ASSESSMENT YEARS IMMEDIA TELY SUCCEEDING ASSESSMENT YEAR FOR WHICH THE AFORESAID DEPRECIATION ALLOWANCE WAS FIRST COMPUTED. FROM HERE IT FOLLOWS THAT THE AMOUNT OF UNABSORBED DEPRECIATION ALLOWANCE WHICH COULD NOT BE SET OFF AGAINST INCOME UNDER ANY HEAD IN THE YEAR IN WH ICH THE ALLOWANCE WAS FIRST COMPUTED, SHALL BE ELIGIBLE TO BE CARRIED FORWARD F OR SET OFF ONLY AGAINST INCOME UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSI ON TO THE FOLLOWING ASSESSMENT I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 7 YEAR(S) NOT MORE THAN EIGHT ASSESSMENT YEARS IMMEDI ATELY SUCCEEDING THE ASSESSMENT YEAR FOR WHICH IT WAS FIRST COMPUTED. 12. THE PROVISIONS OF SEC.32(2) AS SUBSTITUTED BY THE FINANCE ACT, 2001 W.E.F. 1ST APRIL, 2002, APPLICABLE FOR AY 2004-05 & 2005-06 ) ASSESSMENT YEARS UNDER CONSIDERATION (HEREINAFTER CALLED THE 'THIRD PERIOD ') READS AS UNDER : '(2) WHERE, IN THE ASSESSMENT OF THE ASSESSEE, FULL EFFECT CANNOT BE GIVEN TO ANY ALLOWANCE UNDER SUB-S. (1) IN ANY PREVIOUS YEAR, OW ING TO THERE BEING NO PROFITS OR GAINS CHARGEABLE FOR THAT PREVIOUS YEAR, OR OWING T O THE PROFITS OR GAINS CHARGEABLE BEING LESS THAN THE ALLOWANCE, THEN, SUBJECT TO THE PROVISIONS OF SUB-S. (2) OF S. 72 AND SUB-S. (3) OF S. 73, THE ALLOWANCE OR THE PART OF THE ALLOWANCE TO WHICH EFFECT HAS NOT BEEN GIVEN, AS THE CASE MAY BE, SHALL BE AD DED TO THE AMOUNT OF THE ALLOWANCE FOR DEPRECIATION FOR THE FOLLOWING PREVIO US YEAR AND DEEMED TO BE PART OF THAT ALLOWANCE, OR IF THERE IS NO SUCH ALLOWANCE FO R THAT PREVIOUS YEAR, BE DEEMED TO BE THE ALLOWANCE FOR THAT PREVIOUS YEAR, AND SO ON FOR THE SUCCEEDING PREVIOUS YEARS'. 13. THE ABOVE PROVISION IN FACT, IS REINFORCEMENT OF THE PROVISION AS EXISTING IN THE FIRST PERIOD. THUS THE LAW AS EXISTING IN THE SECON D PERIOD WAS COMPLETELY TAKEN BACK AND AS A RESULT OF THAT THE PROVISION AS PREVAILING IN THE FIRST PERIOD WAS RESTORED. THE AO WAS OF THE VIEW THAT THE CLAIM OF THE ASSESS EE FOR CARRY FORWARD OF UNABSORBED DEPRECIATION FOR 94-95 TO 96-97 FOR SET OFF AFTER THE PERIOD OF 8 YEARS CANNOT BE ALLOWED BECAUSE UNABSORBED DEPRECIATION F OR AY 94-95 AND 95-96 TOTALLING RS.8,77,48,743 BECOMES CURRENT YEAR DEPRECIATION OF AY 96-97 AND AS PER THE LAW APPLICABLE FROM AY 1996-97 (SECOND PERIOD) UNABSORB ED DEPRECIATION CAN BE CARRY FORWARD AND SET OFF ONLY UPTO A PERIOD OF 8 YEARS. THE PERIOD OF 8 YEARS WOULD I.E., UPTO 2003-04 AND FROM AY 2004-05 THESE UNABSORBED D EPRECIATION CANNOT BE CARRY FORWARD FOR SET OFF. SIMILAR REASONING WAS ADOPTED BY THE AO FOR WITHDRAWING CARRY FORWARD OF UNABSORBED DEPRECIATION OF RS.3,24,68,19 7/- OF AY 1997-98 CLAIMED IN AY 2005-06. 14. THE POSITION OF UNABSORBED DEPRECIATION FOR AY 1994-95 TILL 2003-04 IS GIVEN AS AN ANNEXURE TO THIS ORDER FOR BETTER APPRECIATION O F FACTS. THE AO WAS OF THE VIEW THAT THE CARRY FORWARD OF UNABSORBED DEPRECIATION FOR AY . 1994-95, AY. 19 5-96 AND A.Y. 1996-97 TO SUBSEQUENT YEARS AGGREGATING TO RS. 8,77 ,48,743/- ON THE GROUND THAT THE I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 8 SAME IS NOT ALLOWABLE TO BE CARRIED FORWARD TO SUBS EQUENT YEARS UNDER THE PROVISIONS OF THE ACT. UNDER THE AMENDED PROVISIONS THE ABOVE UNABSORBED DEPRECIATION WERE ELIGIBLE FOR SET OFF UP TO AY. 2004-05 AND CANNOT B E CARRIED FORWARD TO SUBSEQUENT YEARS. 15. THE AO IN COMING TO THE ABOVE CONCLUSION BY PL ACING RELIANCE ON THE SPECIAL BENCH DECISION OF ITAT MUMBAI IN THE CASE OF DCIT V S. TIMES GUARTEE LTD. (2010) 40 SOT 14 (SB)(MUM) WHEREIN IT WAS HELD THE PROVISI ONS OF SEC.32(2) AS SUBSTITUTED BY THE FINANCE ACT, 2001 W.E.F. 1ST APRIL, 2002, WH ICH IS REINFORCEMENT OF THE PROVISION AS EXISTING IN THE FIRST PERIOD I.E., PRI OR TO 1ST APRIL, 1997. THUS THE LAW AS EXISTING IN THE SECOND PERIOD W.E.F. 1ST APRIL, 199 7 WAS COMPLETELY TAKEN BACK AND AS A RESULT OF THAT THE PROVISION AS PREVAILING IN THE FIRST PERIOD WAS RESTORED. FROM THE LANGUAGE OF THE SUB-S. (2) OF S. 32 IT IS MANIFEST THAT IT IS A SUBSTANTIVE PROVISION AND NOT A PROCEDURAL ONE. IT IS SETTLED LEGAL POSITION THAT THE AMENDMENT TO SUBSTANTIVE PROVISION IS NORMALLY PROSPECTIVE UNLESS EXPRESSLY STATED OTHERWISE OR IT APPEARS SO BY NECESSARY IMPLICATION. THE SPECIAL BENCH SUMMARISED ITS CONCLUSIONS THUS: THE LEGAL POSITION OF CURRENT AND BROUGHT FORWARD UNADJUSTED/UNABSORBED DEPRECIATION ALLOWANCE IN THE THREE PERIODS, IS SUM MARIZED AS UNDER : A. IN THE FIRST PERIOD (I.E. UPTO ASST. YR. 1996-97 ) (I) CURRENT DEPRECIATION, THAT IS THE AMOUNT OF ALLOWANCE FOR THE YEAR UNDER S. 32(1), CA N BE SET OFF AGAINST INCOME UNDER ANY HEAD WITHIN THE SAME YEAR. (II) AMOUNT OF SUCH CURRENT DEPRECIATION WHICH CANNOT BE SO SET OFF WITHIN THE SAME YEAR AS PER (I) ABOVE SHALL BE DEEMED AS DEPRECIATION UNDER S. 32(1), THAT IS DEPRECIATION FOR THE CURREN T YEAR IN THE FOLLOWING YEAR(S) TO BE SET OFF AGAINST INCOME UNDER ANY HEAD, LIKE CURRENT DEPRECIATION. B. IN THE SECOND PERIOD (I.E. ASST. YRS. 1997-98 T O 2001-02). (I) BROUGHT FORWARD UNADJUSTED DEPRECIATION ALLOWANCE FOR AND UPTO ASST . YR. 1996-97 (HEREINAFTER CALLED THE FIRST UNADJUSTED DEPRECIATION ALLOWANCE), WHI CH COULD NOT BE SET OFF UPTO ASST. YR. 1996-97, SHALL BE CARRIED FORWARD FOR SET OFF A GAINST INCOME UNDER ANY HEAD FOR A MAXIMUM PERIOD OF EIGHT ASSESSMENT YEARS STARTING F ROM ASST. YR. 1997-98. (II) CURRENT DEPRECIATION FOR THE YEAR UNDER S. 32(1) (FOR EACH YEAR SEPARATELY STARTING FROM ASST. YR. 1997-98 UPTO 2001-02) CAN BE SET OFF FIRSTLY AG AINST BUSINESS INCOME AND THEN AGAINST INCOME UNDER ANY OTHER HEAD. (III) AMOUNT O F CURRENT DEPRECIATION FOR ASST. YRS. 1997-98 TO 2001-02 WHICH CANNOT BE SO SET OFF AS PER (II) ABOVE, HEREINAFTER CALLED THE SECOND UNABSORBED DEPRECIATION ALLOWANC E SHALL BE CARRIED FORWARD FOR A MAXIMUM PERIOD OF EIGHT ASSESSMENT YEARS FROM THE A SSESSMENT YEAR IMMEDIATELY SUCCEEDING THE ASSESSMENT YEAR FOR WHICH IT WAS FIR ST COMPUTED, TO BE SET OFF ONLY AGAINST THE INCOME UNDER THE HEAD PROFITS AND GAIN S OF BUSINESS OR PROFESSION. I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 9 C. IN THE THIRD PERIOD (I.E. ASST. YR. 2002-03 ONWA RDS). (I) FIRST UNADJUSTED DEPRECIATION ALLOWANCE CAN BE SET OFF UPTO ASST. Y R. 2004- 05, THAT IS, THE REMAINING PERIOD OUT OF MAXIMUM PERIOD OF EIGHT ASSESSMENT YE ARS (AS PER B(I) ABOVE) AGAINST INCOME UNDER ANY HEAD. (II) SECOND UNABSORBED DEPR ECIATION ALLOWANCE CAN BE SET OFF ONLY AGAINST THE INCOME UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION WITHIN A PERIOD OF EIGHT ASSESSMENT YEA RS SUCCEEDING THE ASSESSMENT YEAR FOR WHICH IT WAS FIRST COMPUTED. (III) CURRENT DEPR ECIATION FOR THE YEAR UNDER S. 32(1), FOR EACH YEAR SEPARATELY, STARTING FROM ASST. YR. 2 002-03 CAN BE SET OFF AGAINST INCOME UNDER ANY HEAD. AMOUNT OF DEPRECIATION ALLOWANCE NO T SO SET OFF (HEREINAFTER CALLED THE THIRD UNADJUSTED DEPRECIATION ALLOWANCE) SHAL L BE CARRIED FORWARD TO THE FOLLOWING YEAR. (IV) THE THIRD UNADJUSTED DEPRECIA TION ALLOWANCE SHALL BE DEEMED AS DEPRECIATION UNDER S. 32(1), THAT IS DEPRECIATION F OR THE CURRENT YEAR IN THE FOLLOWING YEAR(S) TO BE SET OFF AGAINST INCOME UNDER ANY HEAD , LIKE CURRENT DEPRECIATION, IN PERPETUITY. 16. BEFORE CIT(A) THE ASSESSEE RELIED ON THE DECI SION OF THE GUJARAT HIGH COURT IN THE CASE OF.GENERAL MOTORS INDIA PVT. LTD. -VS.- DC IT (GUJ.) (2013) 354 ITR 244 (GUJ.) WHEREIN, THE HON'BLE GUJARAT HIGH COURT HAS HELD THAT UNABSORBED DEPRECIATION FROM AY. 1997-98 UP TO AY. 2001-02 GOT CARRIED FORW ARD TO AY. 2002-03 AND BECAME PART THEREOF AND IT CAME TO BE GOVERNED BY T HE PROVISIONS OF SEC. 32(2) AS AMENDED BY THE FINANCE ACT, 2001 AND WERE AVAILABLE FOR CARRY FORWARD AND SET OFF AGAINST INCOME OF SUBSEQUENT YEARS WITHOUT ANY LIMI T. THE RELEVANT EXTRACTS OF THE JUDGMENT IS AS UNDER: 'WE ARE OF THE CONSIDERED OPINION THAT ANY UNABSORB ED DEPRECIATION AVAILABLE TO AN ASSESSEE ON 1ST DAY OF APRIL 2002 (A. Y. 2002-03) W ILL BE DEALT WITH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINAN CE 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, TH E UNABSORBED DEPRECIATION FROM A. Y.1997-98 UPTO THE A. Y. 2001-02 GOT CARRIED FORWAR D 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. ' 17. IT WAS POINTED OUT THAT THE ABOVE DECISION IN THE CASE OF GENERAL MOTORS INDIA PVT. LTD. (SUPRA) HAS BEEN FOLLOWED BY THE HON'BLE GUJAR AT HIGH COURT IN THE CASE OF CIT - VS.- GUJARAT THEMIS BIOSYN LTD. (2014) 44 TAXMANN.C OM 204 (GUJ.). IN THIS CASE THE HON'BLE HIGH COURT UPHELD THE VIEW TAKEN BY THE ITA T WHEREIN, FOLLOWING THE I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 10 DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE C ASE OF GENERAL MOTORS LTD. (SUPRA), IT WAS HELD THAT CARRY FORWARD OF UNABSORBED DEPREC IATION CONCERNING AY. 2001-02 AND ASSESSMENT YEARS PRIOR THERETO CAN BE SET OFF I N SUBSEQUENT YEARS WITHOUT ANY SET TIME LIMIT. 18. REFERENCE WAS FURTHER MADE TO THE DECISION OF THE HON'BLE JURISDICTIONAL TRIBUNAL IN THE CASE OF BENGAL TEA & FABRICS LIMITED (ITA NO 467/KOLL2012) DATED 26TH JULY, 2012 FOR THE AY 2008-09, WHEREIN THE QUESTION AROSE AS TO WHETHER IN VIEW OF THE AMENDED PROVISIONS OF SECTION 32(2) OF THE ACT THE ASSESSEE WOULD BE ENTITLED TO SET OFF THE UNABSORBED DEPRECIATION FOR THE AYS 1997-98 AND 1998-99 AGAINST THE INCOME OF THE AY 2008-09 (I.E. BEYOND ASSESSMENT YEARS 200 4-05/2005-06). THE HON'BLE KOLKATA TRIBUNAL AFTER ANALYZING AND ACCEPTING THE PRINCIPLES OF THE DECISIONS OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF KARNATA KA COOPERATIVE MILK PRODUCERS FEDERATION LTD. -VS.- DC IT (2011) 53 DTR 81 (KAR) AND HON'BLE AMRITSAR TRIBUNAL IN THE CASE OF ITO VS- SURAJ SOLVENT VANASPATI IND USTRIES LTD. (2008) 16 DTR 492 (AMRITSAR) AND FURTHER ACCEPTING THE FACT THAT SINC E THERE IS NO CONTRARY DECISION OF THE HON'BLE CALCUTTA HIGH COURT ON THE AFORESAID ISSUE HAS HELD THAT THE ASSESSING OFFICER HAD TAKEN A CORRECT VIEW OF THE AMENDED PROVISIONS OF THE SECTION 32(2) OF THE ACT TO ALLOW THE ASSESSEE TO CARRY FORWARD THE DEPRECIATIO N ALLOWANCE FOR THE PREVIOUS YEAR 2004-05 AND 2005-06. RELIANCE WAS ALSO PLACED ON TH E DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF COOPERATIVE MIL K PRODUCERS FEDERATION LTD. (SUPRA) HELD AS UNDER: ' ..... THE PROVISION U/S 32(2) OF THE ACT WHICH CA ME TO BE INTRODUCED LIMITING/EXTENDING THE PERIOD FROM EIGHT YEARS FOR AN UNLIMITED PERIOD. FURTHER, CARRYING FORWARD OF UNABSORBED DEPRECIATION FOR EVE RY YEAR HAS TO BE CALCULATED INDIVI ALLY BASED ON AUDIT REPORT AND TO ARRIVE AT THE EXACT AMOUNT TO BE CARRIED FORWARD. 19. THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE. THE FOLLOWING WERE THE RELEVANT OBSERVATIONS OF THE CIT(A): 8 . APPEAL ON GROUND NO. 4 AND 5 ARE AGAINST THE DISA LLOWANCE OF CARRY FORWARD OF UNABSORBED DEPRECIATION OF RS. 8,77,48,743/-. THE A .O. IN HIS ASSESSMENT ORDER HAS CLEARLY MENTIONED THAT UNABSORBED DEPRECIATION OF A SSESSMENT YEAR 1994-95 TO 1996-97 WAS TO BE CLAIMED / SET OFF UPTO ASSESSMENT YEAR 20 04-05 ONLY IT COULD NOT BE CARRIED I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 11 FORWARD AND SET OFF BEYOND THAT. DURING THE APPELLA TE PROCEEDING THE A.R. HAS SUBMITTED A COPY OF THE ORDER OF THE JURISDICTIONAL HON'BLE K OLKATA TRIBUNAL IN THE CASE OF BENGAL TEA & FABRICS LTD. VS. DCLT CIR-4, KOLKATA (ITA NO. 467/KOL/2012 DT. 26-07-2012) WHEREIN THE TRIBUNAL HAS CATEGORICALLY GIVEN ITS FI NDING THAT THE ASSESSEE COMPANY WOULD BE ENTITLED TO SET OFF UNABSORBED DEPRECIATIO N .OR THE A.YS. 1997-98, 1998-99 AGAINST THE INCOME OF A.Y. 2008-09 (I.E. BEYOND THE A.YS.2004-05/2005-06). THE HON'BLE KOLKATA TRIBUNAL HAS ALSO DISCUSSED, ANALYZ ED AND ACCEPTED THE PRINCIPLES OF THE DECISIONS OF HON'BLE KARNATAKA HIGH COURT IN THE CA SE OF KARNATAKA COOPERATIVE MILK PRODUCERS FEDERATIONS LTD. VS. DCLT 53 DTR 81 (KAR NATAKA) ON THE SAME ISSUE. I HAVE CONSIDERED THE FINDING OF THE A.O. IN THE ASSESSMEN T ORDER DT. 16-12-2011 AND THE WRITTEN SUBMISSION AND CASE LAWS FILED BY THE A.R. DURING THE APPELLATE PROCEEDING. I FIND THAT THIS CASE IS SQUARELY COVERED BY THE KOLK ATA TRIBUNALS DECISION IN THE CASE OF BENGAL TEA & FABRICS LTD. (SUPRA). THUS., RESPECTFU LLY FOLLOWING THE RATIO DECIDED BY THE JURISDICTIONAL APPELLATE TRIBUNAL, ASSESSEES APPEA L ON GROUND NO.4 AND 5 ARE ALLOWED. 20. AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVE NUE HAS PREFERRED THE PRESENT APPEALS BEFORE THE TRIBUNAL. 21. WE HAVE HEARD THE SUBMISSIONS OF THE LEARNED D R WHO RELIED ON THE ORDER OF THE AO. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE CIT(A). 22. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND A RE OF THE VIEW THAT IN THE LIGHT OF THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN T HE CASE OF GENERAL MOTORS INDIA PVT. LTD. (SUPRA) WHICH HAS THE EFFECT OF OVERRULIN G THE DECISION OF THE SPECIAL BENCH IN THE CASE OF TIMES GURANTEE (SUPRA) AND ALSO ON T HE BASIS OF OTHER DECISIONS REFERRED BY THE ASSESSEE BEFORE CIT(A), THE ORDER OF THE CIT (A) DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, THE APPEALS BY THE REVEN UE ARE DISMISSED. 23. SINCE THE APPEALS BY THE REVENUE ARE DISMISSED , THE CROSS OBJECTIONS IN WHICH THE ASSESSEE HAS CHALLENGED THE VALIDITY OF INITIATION OF REASSESSMENT PROCEEDINGS U/S.147 OF THE ACT IN AY 2004-05 & 2005-06 ARE CHALLENGED, DOES NOT REQUIRE ANY ADJUDICATION AND IS DISMISSED AS NOT REQUIRING ADJU DICATION. I TA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIV ATE LIMITED. A.YRS.2004-05 & 2005-06 12 24. IN THE RESULT, THE APPEALS AS WELL AS THE CROS S OBJECTIONS ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 11.05.2016. SD/- SD/- [WASEEM AHMED] [N.V.VASUDEVAN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:.11.05.2016. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. M/S.EPCOS INDIA PRIVATE LIMITED, KULIA, KANCHARA PARA ROAD, KALYANI, KALYANI-741251 2 THE D.C.I.T., CIRCLE-11, KOLKATA. 3. THE CIT-IV, KOLKATA. 4 . THE CIT(A)-XII, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES