DCIT, CHENNAI V. DCM Hyundai Ltd., CHENNAI

ITA 1580/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7935 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 05-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 30-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BALASUBRAMANIAN
• Assessee Lawyers: T BANUSEKAR
• Keywords: Depreciation; Unabsorbed depreciation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . !'!# , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ./ITA NO.1580/MDS/2016 & CO NO.83/MDS/2016 # &# / ASSESSMENT YEAR : 2009-10 THE DEPUTY COMMISSIONER OF INCOME-TAX, CORPORATE CIRCLE -1(1), CHENNAI 600 034. V. M/S.DCM HYUNDAI LTD., NO.2, GROUND FLOOR, SRI RAM NAGAR, PRAKASH NAGAR MAIN ROAD, THIRUNINRAVUR, CHENNAI 602024. PAN : AAACD2712K ( '( /APPELLANT) ( )*'( /RESPONDENT/ CROSS OBJECTOR) ASSESSEE BY : SHRI T.BANUSEKAR, C.A. DEPARTMENT BY : SHRI BALASUBRAMANIAN, CIT + ,-$ /DATE OF HEARING : 05.10.2016 ./& ,-$ /DATE OF PRONOUNCEMENT : 30.11.2016 /O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE REVENUE FILED THE APPEAL AGAINST THE ORDER OF CIT(A) -1, CHENNAI DATED 11.02.2016 AND PERTAINS TO ASSESSMENT YEAR 20 09-10. 2. THE ASSESSEE HAS FILED THE CROSS OBJECTION AGAIN ST THE VERY SAME ORDER OF THE CIT(A). THEREFORE, WE HEARD THE APPEAL OF TH E REVENUE AND CROSS 2 I.T.A. NO.1580/MDS/2016 & C.O.NO.83/MDS/2016 OBJECTION OF THE ASSESSEE TOGETHER AND DISPOSE OFF THE SAME BY THIS COMMON ORDER. 3. THE ONLY ISSUE ARISES FOR CONSIDERATION IS SET O FF UNABSORBED DEPRECIATION AGAINST THE LONG TERM CAPITAL GAIN. SH RI BALASUBRAMANIAN, THE LEARNED DEPARTMENT REPRESENTATIVE SUBMITTED THAT TH E ASSESSEE CLAIMED UNABSORBED DEPRECIATION TO BE SET OFF AGAINST THE L ONG TERM CAPITAL GAIN. HOWEVER, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE. REFERRING TO THE DECISION OF THE SPECIAL BENCH OF MUMBAI ITAT IN THE CASE OF DCIT VS. TIMES GUARANTEE LTD. REPORTED IN 131 TTJ 257, DISAL LOWED THE CLAIM OF THE ASSESSEE. HOWEVER, ON APPEAL BY THE ASSESSEE, THE C IT(A) ALLOWED THE CLAIM OF THE ASSESSEE BY PLACING RELIANCE ON THE JUDGMENT OF THE GUJARAT HIGH COURT IN GENERAL MOTORS P LTD. VS. DCIT REPORTED IN 354 ITR 244. ACCORDING TO THE LEARNED DEPARTMENT REPRESENTATIVE, THE REVENUE HAS ALREADY FILED THE SPECIAL LEAVE PETITION BEFORE THE APEX COURT AGAINST THE GU JARAT HIGH COURT JUDGMENT IN GENERAL MOTORS P LTD. (SUPRA). THEREFORE, THE CI T(A) IS NOT JUSTIFIED IN ALLOWING THE CLAIM OF THE ASSESSEE BY PLACING RELIA NCE ON THE JUDGMENT OF THE GUJARAT HIGH COURT. THE LEARNED DEPARTMENT REPRESEN TATIVE FURTHER SUBMITTED THAT HE IS PLACING RELIANCE ON THE OBSERVATION MADE BY THE ASSESSING OFFICER AND THE GROUND RAISED BY THE REVENUE BEFORE THIS TRIBUN AL. 4. ON THE CONTRARY, SHRI T.BANUSEKAR, THE LEARNED R EPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT AN IDENTICAL ISSUE WAS CONS IDERED BY THIS TRIBUNAL IN ASSESSEES OWN CASE IN ITA 1125/MDS/2012 BY AN ORDE R 06.01.2014, AN 3 I.T.A. NO.1580/MDS/2016 & C.O.NO.83/MDS/2016 IDENTICAL CLAIM WAS ALLOWED BY THIS TRIBUNAL FOR TH E ASSESSMENT YEAR 2007-08. A SIMILAR VIEW WAS TAKEN BY THIS TRIBUNAL IN DCIT VS. ISC INVESTMENT & FINANCE PVT.LTD. IN ITA NO.1826/MDS/2015, A COPY OF WHICH I S AVAILABLE AT PAGE 115 OF THE PAPER BOOK. IN VIEW OF THE CONSISTENT VIEW TAKE N BY THIS TRIBUNAL AND THE JUDGMENT OF THE GUJARAT HIGH COURT IN GENERAL MOTOR S P LTD. (SUPRA), THE CIT(A) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSE E. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AS RIGHTL Y SUBMITTED BY THE LEARNED REPRESENTATIVE FOR THE ASSESSEE, THE UNABSORBED DEP RECIATION WAS CLAIMED TO BE SET OFF AGAINST THE LONG TERM CAPITAL GAIN FOR T HE ASSESSMENT YEAR 2007-08. BY PLACING RELIANCE ON THE JUDGMENT OF THE GUJARAT HIGH COURT IN GENERAL MOTORS P LTD. (SUPRA), THIS TRIBUNAL IN THE ASSESSE ES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 ALLOWED THE CLAIM OF THE AS SESSEE. THE ONLY CONTENTION OF THE DEPARTMENT REPRESENTATIVE IS THAT THE DECISION OF THE MUMBAI SPECIAL BENCH OF THIS TRIBUNAL IS AGAINST THE ASSES SEE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE JUDGMENT OF THE GUJARAT HIGH COURT HAS TO BE PREFERRED RATHER THAN THE DECISION OF THE MUMBAI SP ECIAL BENCH OF THIS TRIBUNAL. THEREFORE, THE CIT(A) HAS RIGHTLY PLACED HIS RELIANCE ON THE JUDGMENT OF THE GUJARAT HIGH COURT IN GENERAL MOTORS P LTD. (SUPRA) RATHER THAN THE DECISION OF MUMBAI SPECIAL BENCH OF THIS TRIBUNAL I N TIMES GUARANTEE LTD. (SUPRA). 4 I.T.A. NO.1580/MDS/2016 & C.O.NO.83/MDS/2016 6. IN VIEW OF THE ABOVE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITIES AND ACCORDI NGLY, THE SAME IS CONFIRMED. HENCE, THE APPEAL OF THE REVENUE STANDS DISMISSED. 7. IN VIEW OF THE DECISION OF THIS TRIBUNAL IN THE APPEAL OF THE REVENUE, THE CROSS OBJECTION BECOMES INFRUCTUOUS. ACCORDINGL Y, THE CROSS OBJECTION IS ALSO DISMISSED. 8. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE AN D THE CROSS OBJECTION OF THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED ON 30 TH NOVEMBER, 2016 AT CHENNAI. SD/- SD/- ( . !'!# ) ( . . . ) (ABRAHAM P. GEORGE) (N.R.S. GANESAN) $ /ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 0 /DATED, THE 30 TH NOVEMBER, 2016. SP. , )-12 32&- /COPY TO: 1. '( /APPELLANT 2. )*'( /RESPONDENT 3. + 4- ( )/CIT(A) 4. + 4- /CIT, 5. 25 )- /DR 6. 6# 7 /GF.S