Deputy Commissioner of Income-tax, V. Bhima Sahakari Sakhar Karkhana Ltd., Pune

ITA 1414/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2261 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 30-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMOL KAMAT
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO , AM AND SHRI VIKAS AWASTHY, JM . / I TA NO. 1414 /PUN/20 16 / ASSESSMENT YEAR : 2006 - 07 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 14, PUNE. .... / APPELLANT / V/S. BHIMA SAHAKARI SAKHAR KARKHANA LTD. A/P. MADHUKARNAGAR, PATAS, TAL. DAUND, DIST PUNE. PIN - 412 219 PAN : AAATB1781B / RESPONDENT REVENUE BY : SHRI AMOL KAMAT, CIT A SSESSEE BY : SHRI PRAMOD SHINGTE / DATE OF HEARING : 13.08.2018 / DATE OF PRONOUNCEMENT : 09 .11.2018 / ORDER PER VIKAS AWASTHY, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 7, PUNE DATED 01.04.2016 FOR THE ASSESSMENT YEAR 2006 - 07. 2. THE REVENUE IN APPEAL HAS ASSAILED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) BY RAISING FOLLOWING GROUNDS: 2 ITA NO. 1414 /PUN/20 16 A.Y. 2006 - 07 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING THE UNABSORBED DEPRECIATION LOSS FOR THE A.Y.1998 - 99 TO BE CARRY FORWARD AND SET OFF AGAINST FURTHER PROFITS? 2. FOR THE FACTS AND SUCH OTHER REASONS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), PUNE MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE IS A CO - OPERATIVE SOCIETY REGISTERED UNDER MAHARASHTRA CO - OPERATIVE SOCIET IES ACT, 1960 AND IS ENGAGED IN MANUFACTURE AND SALE OF SUGAR AND ITS BY PRODUCTS. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 31. 0 6.2006 DECLARING TOTAL INCOME AS NIL AFTER SETTING OFF OF RS.3,32,51,892/ - AGAINST THE CARRIED FORWARD LOSSES FOR EARLIER YEARS. IN SCRUTINY ASSESSMENT PROCEEDINGS, INCOME OF THE ASSESSEE WAS ASSESSED AT RS.7,76,48,790/ - VIDE ORDER DATED 29.12.2008. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEAL). CONSEQUENT TO THE ORDER OF THE FIRST APPELLATE AUTHORITY, INCOME OF THE ASSESSEE WAS DETERMINED AT RS.4,16,96,310/ - . THEREAFTER, ASSESSEE FILED APPLICATION U/S.154 OF TH E INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) CLAIMING CARRIED FORWARD LOSSES OF RS.78,21,35,265/ - . IN PROCEEDINGS U/S.154 OF THE ACT, SET OFF OF CARRIED FORWARD LOSS WAS ALLOWED. SUBSEQUENTLY, NOTICE U/S.148 OF THE ACT WAS ISSUED TO THE AS SESSEE ON 28.03.2013. IN RE - ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER DISALLOWED CARRY FORWARD OF UNABSORBED DEPRECIATION LOSS OF RS. 4,78,24,427/ - F OR ASSESSMENT YEAR 1998 - 99 SET OFF AGAINST PROFITS OF ASSESSMENT YEAR UNDER APPEAL. 4. AGGRIEVED BY THE ASSESSMENT ORDER DATED 12.07.2013 PASSED U/S. 143(3) R.W.S. 147 OF THE ACT, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX 3 ITA NO. 1414 /PUN/20 16 A.Y. 2006 - 07 (APPEALS) FOLLOWING THE ORDER OF TRIBUNAL IN ASSESSEES O WN CASE IN ITA NO.1998/PN/2013 FOR ASSESSMENT YEAR 2004 - 05 DECIDED ON 21.10.2014 A LLOWED THE CARRY FORWARD OF UNABSORBED DEPRECIATION OF ASSESSMENT YEAR 1995 - 96 AND ITS SET OFF AGAINST INCOME FOR ASSESSMENT YEAR 2004 - 05 . HENCE, THE PRESENT APPEAL BY THE RE VENUE. 5. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ISSUE RAISED IN THE PRESENT APPEAL BY REVENUE IS SQUARELY COVERED BY THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.1998/PN/2013 (SUPRA.). 6. SHRI AMOL KAMA T REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE ASSESSMENT ORDER. HOWEVER, THE LD. DR FAIRLY ADMITTED THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SIMILAR TO THE ONE ADJUDICATED BY TR IBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004 - 05. 7. B OTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PERUSED. THE SOLITARY ISSUE RAISED BY REVENUE IN APPEAL IS AGAINST ALLOWING UNABSORBED DEPRECIATION LOSS FOR ASSESSMENT YEAR 1998 - 99 TO BE CARRIED FORWARD AND SET OFF AGAINST PROFITS OF THE ASSESSMENT YEAR 2 006 - 07. WE FIND THAT THE ISSUE WHETHER UNABSORBED DEPRECIATION CAN BE CARRIED FORWARD FOR A PERIOD OF 8 YEARS AND CAN BE ALLOWED AGAINST INCOME OF THE LATTER ASSESSMENT YEAR S WAS DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004 - 05 . I N THE SAID CASE, UNABSORBED DEPRECIATION LOSS FOR ASSESSMENT YEAR 1995 - 96 WAS CARRIED FORWARD BY ASSESSEE AND WAS SET OFF AGAINST INCOME FOR THE ASSESSMENT YEAR 2004 - 05. THE ASSESSING OFFICER/ COMMISSIONER OF INCOME TAX (APPEALS) DISALLOW ED THE CLAIM OF AS SESSEE. IN SECOND APPEAL BEFORE THE TRIBUNAL, ASSESSEE SUCCEEDED. THE CO - ORDINATE BENCH OF THE TRIBUNAL 4 ITA NO. 1414 /PUN/20 16 A.Y. 2006 - 07 FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA (P.) LTD. VS. DCIT REPORTED AS 354 ITR 244 (GUJ.) AL LOWED THE ASSESSEE TO CARRY FORWARD UNABSORBED DEPRECATION OF THE EARLIER YEARS AND TO BE SET OFF AGAINST INCOME DURING THE PERIOD OF 8 YEARS. THE LD. DR HAS NOT BROUGHT BEFORE US ANY CONTRARY DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OR THE HON'BLE APEX COURT . WE DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER. ACCORDINGLY, THE GROUND RAISED BY REVENUE IN APPEAL IS DISMISSED BEING DEVOID OF ANY MERIT. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRO NOUNCED ON FRIDAY, THE 09 TH DAY OF NOVEMBER , 2018 . SD/ - SD/ - ( . / D. KARUNAKARA RAO ) ( / VIKAS AWASTHY ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 09 TH NOVEMBER , 2018 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS) - 7, PUNE. 4. THE CIT - 6, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. //TRUE COPY// / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE .