The ACIT,Vapi Circle, Vapi V. Gujarat Themis Biosyn Ltd., Vapi

ITA 1176/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1115 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 26-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Depreciation; Unabsorbed depreciation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD ,.., BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER ./ I.T.A. NO.1176/AHD/2013 ( / ASSESSMENT YEAR : 2006-07) ASST.CIT VAPI CIRCLE VAPI / VS. M/S.GUJARAT THEMIS BIOSYN LTD. 69-C, GIDC INDUSTRIAL AREA GIDC, VAPI % ./ ./ PAN/GIR NO. : AABCG 0802 C ( %( / APPELLANT ) .. ( )*%( / RESPONDENT ) %(+ / APPELLANT BY : SHRI SANJAY KUMAR, SR.DR )*%(,+ / RESPONDENT BY : SHRI M.K. PATEL, AR -, / DATE OF HEARING 08/07/2016 ./0, / DATE OF PRONOUNCEMENT 14/07/2016 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-VALSAD, DATE D 16/01/2013 FOR ASSESSMENT YEAR (AY) 2006-07. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- ITA NO.1176/AHD /2013 ACIT VS. M/S.GUJARAT THEMIS BIOSYN LTD. ASST.YEAR 2006-07 - 2 - 2.1. ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE BUSINESS OF BULK DRUGS. ASSESSEE FILED ITS RETURN OF INCOME FO R AY 2006-07 SHOWING A LOSS OF RS.1,31,11,917/-. ASSESSMENT WAS FRAMED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'T HE ACT') VIDE ORDER DATED 26/12/2008, WHEREIN ADDITION/DISALLOWANCE OF RS.10,83,217/- WERE MADE TO THE TOTAL INCOME OF THE ASSESSEE. SUBSEQUE NTLY, THE CASE WAS REOPENED BY ISSUING NOTICE U/S.148 OF THE ACT AND T HE REASON FOR REOPENING WAS THAT ACCORDING TO AO, THE UNABSORBED DEPRECIATION OF PERIOD AY 1997-98 TO AY 2001-02 AGGREGATING TO RS.3 ,55,50,058/- HAD EXCEEDED THE ALLOWABLE PERIOD FOR CARRY FORWARD OF 8 YEARS PRESCRIBED U/S.32(2)(III)(B) AND WAS THEREFORE NOT ALLOWABLE FOR CARRY FORWARD. IN RESPONSE TO NOTICE ISSUED U/S.148 OF THE ACT, ASSE SSEE SUBMITTED THAT THE ORIGINAL RETURN FILED BY IT BE CONSIDERED AS RETURN OF INCOME FILED AGAINST IN RESPONSE TO NOTICE U/S.148 OF THE ACT. THEREA FTER, THE CASE WAS TAKEN UP FOR SCRUTINY AND ASSESSMENT WAS FRAMED U/S.143(3 ) R.W.S.147 OF THE ACT VIDE ORDER DATED 23/12/2011 WHEREBY THE ASSESS EE WAS DENIED THE BENEFIT OF CARRY FORWARD OF CARRY FORWARD OF UNABS ORBED DEPRECIATION FOR AY 1997-98 OF RS.3,55,50,058/-. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER (AO), ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), WHO VIDE ORDER DATED 16/01/2013 (IN APPEAL NO.CIT( A)/VLS/422/10- 11) DECIDED THE ISSUE IN FAVOUR OF ASSESSEE BY HOLD ING AS UNDER:- 6.4. DECISION :- I HAVE CAREFULLY PERUSED THE SUBMISSIONS MADE BY THE APPELLANT COMPANY AND THE JUDICIAL DECISION AS RELIED UPON. THE ITA NO.1176/AHD /2013 ACIT VS. M/S.GUJARAT THEMIS BIOSYN LTD. ASST.YEAR 2006-07 - 3 - JURISDICTIONAL GUJARAT HIGH COURT HAS CLEARLY HELD THAT CARRY FORWARD OF UNABSORBED DEPRECIATION PERTAINING TO ASSTT.YEAR 20 01-02 AND ITS PRIOR ASSESSMENT YEARS CAN BE SET OFF IN SUBSEQUENT YEARS WITHOUT ANY TIME LIMIT. RESPECTFULLY FOLLOWING THE DECISION OF THE HONORABLE JURISDICTIONAL GUJARAT HIGH COURT IN THE CASE OF M/ S.GENERAL MOTORS PRIVATE LIMITED VS. DCIT THE AO IS DIRECTED TO ALLO W CARRY FORWARD OF UNABSORBED DEPRECIATION OF RS.3,55,50,058/- PERTAIN ING TO ASST.YEAR 2001-02 AND ITS PRIOR ASSESSMENT YEARS FOR BEING SE T OFF IN SUBSEQUENT YEARS WITHOUT ANY TIME LIMIT. THIS GROUND OF APPEA L IS ACCORDINGLY ALLOWED. 2.2. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), REVEN UE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) HAS ERRED IN ALLOWING THE UNABSORBED DEPR ECIATION OF RS.3,55,50,058/- TO BE CARRIED FORWARD. 3. BEFORE US, LD.SR.DR SUPPORTED THE ORDER OF THE A O. LD.AR, ON THE OTHER HAND, REITERATED THE SUBMISSIONS MADE BEFORE THE AO AND THE LD.CIT(A) AND FURTHER SUBMITTED THAT IN ASSESSEES OWN CASE AND ON IDENTICAL FACTS FOR EARLIER YEAR, THE MATTER WAS CA RRIED BY THE REVENUE BEFORE THE HONBLE GUJARAT HIGH COURT. THE HONBLE GUJARAT HIGH COURT VIDE ORDER DATED 24/02/2014 DISMISSED THE APPEAL OF THE REVENUE IN TAX APPEAL NO.3 OF 2014 DATED 24/02/2014. THE LD.AR PL ACED ON RECORD THE COPY OF THE AFORESAID DECISION. HE THEREFORE SUBMI TTED THAT SINCE THE ISSUE ON IDENTICAL FACTS IN ASSESSEES OWN CASE IN EARLIER YEAR HAS BEEN DECIDED IN ASSESSEES FAVOUR, NO INTERFERENCE IS RE QUIRED WITH THE ORDER OF THE LD.CIT(A). HE THUS SUPPORTED THE ORDER OF THE LD.CIT(A). ITA NO.1176/AHD /2013 ACIT VS. M/S.GUJARAT THEMIS BIOSYN LTD. ASST.YEAR 2006-07 - 4 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO A DJUSTMENT OF UNABSORBED DEPRECIATION PERTAINING TO THE PERIOD FROM AY 1997- 98 TO AY 2001-02. WE FIND THAT THE LD.CIT(A) WHILE DECIDING THE ISSUE IN FAVOUR OF ASSESSEE HAD RELIED UPON THE DECISION OF HONBLE GUJARAT HIG H COURT IN THE CASE OF M/S.GENERAL MOTORS PVT LTD. VS. DCIT REPORTED IN (2 013) 354 ITR 244 (GUJ.). WE FURTHER FIND THAT ON IDENTICAL FACTS I N ASSESSEES OWN CASE FOR EARLIER YEARS, THE APPEAL OF REVENUE WAS DISMISSED BY HONBLE GUJARAT HIGH COURT (IN TAX APPEAL NO.3 OF 2014 ORDER DATED 24/02/2014). IN VIEW OF THE AFORESAID FACTS AND IN THE ABSENCE OF A NY CONTRARY BINDING DECISION, WE ARE OF THE VIEW THAT NO INTERFERENCE W ITH THE ORDER OF LD.CIT(A) IS CALLED FOR AND THUS THIS GROUND OF RE VENUE IS DISMISSED. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 14/07/2016 SD/- SD/- .. () () ( S.S. GODARA ) ( ANIL CHATURVEDI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 14/ 07 /2016 4..,.../ T.C. NAIR, SR. PS ITA NO.1176/AHD /2013 ACIT VS. M/S.GUJARAT THEMIS BIOSYN LTD. ASST.YEAR 2006-07 - 5 - !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )*%( / THE RESPONDENT. 3. 567 8 / CONCERNED CIT 4. 8 ( ) / THE CIT(A)-VALSAD 5. 9:) 67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. <=- / GUARD FILE. / BY ORDER, *9 ) //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 8.7.16 (DICTATION-PAD 6- P AGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12.7.16 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.15.7.16 MORNING 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15.7.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER