The DCIT, Central Circle-2(3), Ahmedabad V. M/s. Tearpanth Foods Ltd., Gandhidham

ITA 1665/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9340 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-02-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 06-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAMES KURIEN
• Assessee Lawyers: K C THAKKER
• Keywords: Depreciation; Principle of natural justice; Unabsorbed depreciation
• Section: 143(3); 142(1); 115JB; 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI RAJPAL YADAV, JM & SHRI MANISH BORAD, AM. ITA NO. 1665/AHD/2013 ASST. YEAR: 2008-09 DCIT, CENTRAL CIRCLE-2(3), AHMEDABAD. VS. M/S TEARPANTH FOODS LTD., MAITRI BHAVAN, PLOT NO.18, SEC-8, GANDHIDHAM (KUTCH( APPELLANT RESPONDENT PAN AAACT7787N APPELLANT BY SHRI JAMES KURIEN, SR. DR RESPONDENT BY SHRI K. C. THAKKER, AR DATE OF HEARING: 06/02/2017 DATE OF PRONOUNCEMENT: 07/02/2017 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THIS APPEAL OF REVENUE FOR ASST. YEAR 2008-09 IS D IRECTED AGAINST THE ORDER OF LD. CIT(A)-II, RAJKOT, DATED 2 6/03/2013 VIDE ORDER NO.CIT(A)-II/RJT/0077/10-11 ARISING OUT OF ORDER U/ S 143(3) OF THE IT ACT, 1961 (IN SHORT THE ACT) FRAMED ON 24/12/2010 B Y ACIT, GANDHIDHAM CIRCLE, GANDHIDHAM (KUTCH). 2. THE ONLY GROUND IN THIS APPEAL RAISED BY THE REV ENUE IS AGAINST THE ORDER OF LD. CIT(A) ALLOWING ASSESSEES CLAIM O F SET OFF OF BROUGHT ITA NO. 1665/AHD/2013 ASST. YEAR 2008-09 2 FORWARD UNABSORBED DEPRECIATION OF RS.2,95,27,925/- PERTAINING TO ASST. YEAR 1999-2000. 3. BRIEFLY STATED FACTS RELATING TO THIS ISSUE AS CULLED OUT FROM THE RECORDS ARE THAT THE ASSESSEE IS A REGISTERED C OMPANY ENGAGED IN THE BUSINESS OF MANUFACTURING OF FREE FLOW REFIN ED IODIZED SALT, DURING THE YEAR UNDER CONSIDERATION THE APPELLANT H AD FILED RETURN OF INCOME U/S. 139(1) OF THE INCOME TAX ACT ON 29.09.2 008 DECLARING TOTAL INCOME AT RS. NIL AFTER CLAIMING SET OFF OF B ROUGHT FORWARD BUSINESS LOSS OF RS. 30,82,831/- AND SHOWING BOOK PROFIT U/S 115JB OF THE ACT AT RS.8,14,04,114/-. THE CASE WAS SELECT ED FOR SCRUTINY ASSESSMENT AND NOTICE U/S 143(2) OF THE ACT WAS ISS UED ON 25.08.2009, FOLLOWED BY NOTICE U/S 142(1) OF THE A CT. AGAINST THE INCOME OF RS.2,18,70,576/- THE ASSESSEE CLAIMED SET OFF OF UNABSORBED DEPRECIATION OF RS. 2,95,27,925/- WHICH WAS BROUGHT FORWARD FROM A.Y. 1999-2000. SUCH SET OFF OF UNABSO RBED DEPRECIATION BROUGHT FORWARD FROM ASSTT. YEAR 1999- 2000 WAS DISALLOWED/DENIED TO THE APPELLANT ON THE GROUND TH AT AS PER SECTION 32(2) WHICH WAS APPLICABLE TO ASSTT. YEAR 1999-2000 UNABSORBED DEPRECIATION CAN BE CARRY FORWARD-ONLY TO THE MAXIM UM PERIOD OF 8 YEARS SUCCEEDING THE ASSTT. YEAR IN WHICH DEPRECIAT ION REMAINS UNABSORBED. SINCE IN THE CASE OF THE APPELLANT SAI D PERIOD OF 8 YEAR EXPIRED IN ASSTT. YEAR 2007-08, THE APPELLANT, IS N OT ENTITLED TO SET OFF AS WELL AS CARRY FORWARD THE UNABSORBED DEPRECIATIO N OF ASSTT. YEAR 1999-2000 AGAINST THE INCOME OF ASSTT. YEAR 2008-09 . THE LD. ASSESSING OFFICER ACCORDINGLY, DISALLOWED THE CLAIM OF SETTING OFF OF UNABSORBED DEPRECIATION. ITA NO. 1665/AHD/2013 ASST. YEAR 2008-09 3 4. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) AND SUCCEEDED AS THE IMPUGNED DISALLOWANCE WAS DELE TED. 5. AGGRIEVED, REVENUE IS NOW IN APPEAL BEFORE THE T RIBUNAL.. 6. AT THE OUT SET LD. AUTHORISED REPRESENTATIVE (AR ) SUBMITTED THAT THE ISSUE IN THIS APPEAL IS SQUARELY COVERED IN FAV OUR OF ASSESSEE BY THE JUDGMENT OF HON. JURISDICTIONAL HIGH COURT IN T HE CASE OF CIT VS. GUJARAT THEMIS BIOSYN LTD. VIDE TAX APPEAL NO.3 OF 2014 WHEREIN HON. COURT CONSIDERING THE DECISION IN THE CASE OF GENERAL MOTORS INDIA (P) LTD. VS. DCIT 354 ITR 244 (GUJ) HAS HELD THAT UNABSORBED DEPRECIATION CONCERNING 2001-02 AND ASSESSMENT YEAR S PRIOR THERETO CAN BE SET OFF IN SUBSEQUENT YEARS WITHOUT ANY SET TIME LIMIT. 7. ON THE OTHER LD. DR SUPPORTED THE ORDER OF LD. A SSESSING OFFICER BUT COULD NOT CONTROVERT THE SUBMISSIONS OF LD. AR. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD AND ALSO GONE THROUGH THE JUDGMENT RELIED ON BY THE LD. AR. SOLITARY GRIEVANCE OF THE REVENUE IS AGAINST THE ORDER OF LD . CIT(A) ALLOWING THE ASSESSEES CLAIM OF SETTING OFF OF BROUGHT FORW ARD UNABSORBED DEPRECIATION OF RS.2,95,27,925/- PERTAINING TO ASST . YEAR 1999-2000 AGAINST THE INCOME OF ASST. YEAR 2008-09. WE OBSERV E THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS LD. ASSESSING OFFICER RAISED QUESTION AGAINST THE CLAIM OF SETTING OFF OF UNABSO RBED DEPRECIATION OF ITA NO. 1665/AHD/2013 ASST. YEAR 2008-09 4 RS.294,27,925/- OF BROUGHT FORWARD FROM ASST. YEAR 1999-2000. IN REPLY TO SHOW CAUSE NOTICE ASSESSEE VIDE ITS LETTER DATED 15.12.2010 SUBMITTED AS UNDER :- AS FAR AS CONTENTION OF YOUR HONOUR THAT SUCH SET O FF SHOULD NOT BE ALLOWED ON THE GROUND THAT A PERIOD OF 8 YEARS IS ALREADY EXPIRED FOLLOWING THE ASSTT. YEAR IN WHICH SUCH UN-ABSORBED DEPRECIATION WAS ARISEN AND ACCORD ING TO THE PROVISION OF SECTION 32(2) WHICH WAS IN EXISTENCE AT THE RELEVANT TIME, CARRY FORWARD OF AN UN-ABSORBED DEPRECIATION SHOULD NOT BE ALLOWED BEYOND A PERIOD OF 8 YEARS FROM THE ASSTT. YEAR IN WHICH SUCH UN-ABSORBED DEPRECIATION WAS FIRST CO MPUTED. IN THIS REGARD WE WOULD LIKE TO SUBMIT THAT THE LAW AS EXISTING ON FIRST DA Y OF THE RELEVANT ASSTT YEAR IN WHICH SUCH SET OFF IS CLAIMED HAS TO BE SEEN AND IN THAT VIEW OF THE MATTER SECTION 32(2) AS SUBSTITUTED IN THE ASSTT. YEAR UNDER CONSIDERATION WOULD BE APPLICABLE ACCORDING TO WHICH THE UN-ABSORBCD DEPRECIATION OF THE EARLIER Y EAR WILL BECOME PART AND PARCEL OF THE CURRENT YEAR DEPRECIATION AND THE SAME IS REQUI RED TO BE ALLOWED IN THE CURRENT YEAR UNDER QUESTION SUBJECT TO THE PROVISION OF SEC TION 72(2) & 73(3). AS THE SUBSTITUTED LAW PERMIT US TO CARRY FORWARD UNABSORB ED DEPRECIATION INDEFINITELY AND SUCH UN-ABSORBED DEPRECIATION WILL BECOME THE CURRE NT DEPRECATION FOR THE NEXT ASSTT. YEAR, WE ARE VERY WELL LEGALLY ENTITLED TO C LAIM SET OFF OF SUCH BROUGHT FORWARD DEPRECIATION AGAINST THE INCOME OF CURRENT YEAR. IN SUPPORT OF OUR PROPOSITION THAT THE LAW (AS AMENDED) ON THE FIRST DAY OF THE ASSTT YEAR IS TO BE APPLIED WE RELIED ON THE DECISION OF HON. SUPREME COURT IN THE CASE OF KARIM THARUVI TEA ESTATE LTD. VS. STATE OF KARA LA 60 ITR 262 (SC) AND RELIANCE JUTE & INDUSTRIES LTD. VS CIT120 ITR 921 (SC), IN VIEW OF THE ABOVE SAID LEGAL POSITION WE REQUEST YOUR HONOUR TO KINDLY CONSIDER PROVISION OF SECTION 32(2) AS APPLICABLE FOR THE AS STT. YEAR UNDER CONSIDERATION I.E. ASSTT. YEAR 2008-09 AND ACCORDINGLY ALLOWED US SUCH SET OFF TO WHICH WE ARE VERY MUCH ENTITLED AND DROP THE PROPOSAL OF DISALLOWING SUCH SET OFF. ' 9. HOWEVER, REPLY OF THE ASSESSEE COULD NOT CONVINC E LD. ASSESSING OFFICER AS HE WAS OF THE VIEW THAT THE IS SUE WAS SQUARELY COVERED AGAINST THE ASSESSEE BY THE DECISION OF THE ITAT SPECIAL BENCH, MUMBAI IN THE CASE OF DCIT VS. TIMES GUARANT EE LTD.(2010) 40 SOT 14 (MUM)(SB) AND ACCORDINGLY OBSERVED THAT S INCE THE UNABSORBED DEPRECIATION FOR ASST. YEAR 1999-2000 WA S ELIGIBLE FOR SET OFF AND CARRY FORWARD UPTO THE ASST. YEAR 2007- 08 AND THE PERIOD OF 8 YEAR HAS ELAPSED, SET OFF OF BROUGHT FORWARD U NABSORBED ITA NO. 1665/AHD/2013 ASST. YEAR 2008-09 5 DEPRECIATION OF RS.2,94,27,925/- TO THE EXTENT OF B ALANCE INCOME FOR THE ASST. YEAR 2008-09 OF RS.2,18,70,576/- AND BAL ANCE OF RS.75,57,349/- CLAIMED TO BE CARRIED FORWARD ARE IR REGULAR AND NEEDS TO BE DISALLOWED. 10. WE FURTHER OBSERVE THAT WHEN THE ISSUE CAME UP BEFORE LD. CIT(A) THE SAME WAS DECIDED IN FAVOUR OF ASSESSEE B Y RELYING ON THE JUDGMENT OF HON. JURISDICTIONAL HIGH COURT IN THE C ASE OF GENERAL MOTORS INDIA P. LTD. VS. DCIT (SUPRA) BY OBSERVING AS FOLLOWS: DECISION: 5.0 AFTER CONSIDERING THE SUBMISSIONS MADE BY THE APPELLANT AND PERUSING THE MATERIAL ON RECORD INCLUDING THE IMPUGNED ASSESSMEN T ORDER, THE .GROUNDS OF APPEAL ARE DECIDED AS UNDER: GROUND NO. 1 : THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE SET OFF OF BROUGHT FORWARD BUSINESS LOSS OF ASSTT. YEAR 2001-02 TO THE TUNE OF RS. 29,77, 230/- INSTEAD OF RS. 30,82,83 1 /- AS CLAIMED BY THE APPELLANT WITHOUT GIVING ANY OPPORTUNITY TO THE APPELLANT TO EXPLAIN THE SAME THEREBY BREACHING THE PRINCIPLE OF NATURAL JUSTICE. 5.1 THE A.O. HAS ALLOWED THE BROUGHT FORWARD BUSINE SS LOSS OF A.Y. 01-02 TO THE TUNE OF RS.29,77,230/- INSTEAD OF RS.30,82,831/ -, THIS HAS BEEN DONE BY THE A.O. BY TAKING THE DETAILS AS PER STATEMENT E OF BR OUGHT FORWARD LOSS/ DEPRECIATION. 5.2 THE APPELLANT HAS CONTENDED THAT NO OPPORTUNITY WAS PROVIDED TO HIM TO EXPLAIN SUCH DIFFERENCE AND CLARIFY THE ISSUE TO TH E LD. A.O. THE APPELLANT HAS CONTENDED THAT IT WAS ONLY A TYPOGRAPHICAL ERROR. I N SUPPORT OF HIS CONTENTION, THE APPELLANT HAS SUBMITTED THE STATEMENT OF INCOME , TAX AUDIT REPORT AND RELEVANT PAGE OF ITR-6 FOR A.Y. 07-08 WHICH SHOWS T HE CARRY FORWARD BUSINESS LOSS OF RS.30,82,831/- AND NOT RS.29,77,230/- 5.3 THE APPELLANT'S CONTENTION AND THE SUBMISSION HAVE BEEN CAREFULLY PERUSED AND FOUND TO BE IN ORDER. THE A.O. IS DIRECTED TO A LLOW THE BROUGHT FORWARD BUSINESS LOSS FOR A.Y. 01-02 AT RS. 30,82,831/- AS AGAINST ITA NO. 1665/AHD/2013 ASST. YEAR 2008-09 6 RS.29 ; 77,230/- ALLOWED IN THE ASSESSMENT ORDER. THIS GROU ND OF APPEAL IS' ALLOWED. GROUND NO.2 : THE LEARNED ASSESSING OFFICER HAS FURTHER ERRED IN LAW AS WELL AS ON FACTS IN DENYING THE SET OFF OF BROUGHT FORWARD UNA BSORBED DEPRECIATION OF ASSTT. YEAR J 999-2000 AMOUNTING TO . RS. 2,94,27,925/~ AGAINST THE INCOME OF CURRENT YE AR AND CARRY FORWARD OF BALANCE AMOUNT FOR THE NEXT AS STT. YEAR. 6,0 THE APPELLANT HAD CLAIMED THE SET OFF OF BROUGH T FORWARD UNABSORBED DEPRECIATION FOR A.Y. 99-2000 OF RS.2,94,27,925/- F ROM THE TOTAL INCOME. THE SAME WAS DENIED BY THE A.O. THE A.O. HELD THAT THE UNABSORBED DEPRECIATION PERTAINING TO A.Y. 96-97 TO A.Y. 01-02 (BEFORE THE AMENDMENT TO SECTION 32(2) OF THE I. T. ACT, 1961 W.E.F. A.Y. 02-03) IS ELIGIB LE FOR SET OFF AND CARRY FORWARD FOR A MAXIMUM PERIOD OF EIGHT YEARS ONLY. THE A.O. HELD THAT THIS IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE ITAT IN CASE OF DGIT'VS. TIMES GUARANTEE LTD. 40 SOT 14. THE APPELLANT MADE VARIOU S SUBMISSIONS ON THIS ISSUE. HOWEVER, IN HIS LAST SUBMISSION, THE APPELLA NT SUBMITTED THAT THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE GUJ ARAT HIGH COURT IN SCA NO.1773 OF 2012 IN THE CASE OF GENERAL MOTORS_INDIA P. LTD. VS. DCIT .(2012) 210 TAXMAN 20. IN THE SAID DECISION, THE HON'BLE GU JARAT HIGH COURT HAS REVERSED THE DECISION OF MUMBAI SPECIAL BENCH OF IT AT IN THE CASE OF DCIT VS. TIMES GUARANTEE (SUPRA). IT IS HELD BY THE HON' GLE GUJARAT HIGH COURT THAT AFTER THE AMENDMENT CARRIED OUT IN S.32(2) W.E.F. 1 /4/2002 THERE IS NO RESTRICTION IN CARRY FORWARD OF UNABSORBED DEPRECIATION OF A.Y. 97-98 TO A.Y. 01-02 AND THE SAME IS ELIGIBLE FOR CARRY FORWARD WITHOUT ANY LIMIT WHATSOEVER. 6.1 I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER, THE APPELLANT'S SUBMISSION AND THE DECISION OF THE HON'BLE GUJARAT HIGH COURT REFERRED TO ABOVE. THE HON'BLE HIGH COURT HAS SAID AS UNDER - . '37. THE CBDT CIRCULAR CLARIFIES THE INTENT OF THE AMENDMENT THAT IT IS FOR ENABLING THE INDUSTRY TO CONSERVE SUFFICIENT FUNDS TO REPLACE PLANT AND MACHINERY AND ACCORDINGLY THE AMENDMENT DISPENSES W ITH THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED D EPRECIATION. THE AMENDMENT IS APPLICABLE FROM ASSESSMENT YEAR 2002-03 AND SUBSEQU ENT YEARS. THIS MEANS THAT ANY UNABSORBED DEPRECIATION AVAILABLE TO AN ASSESSE E ON 1ST DAY OF APRIL, 2002 (A. Y. 2002- 03) WILL BE DEALT WITH IN ACCORDANCE W ITH THE PROVISIONS OF SECTION 32(2), AS AMENDED BY FINANCE ACT, 2001 AND NOT BY T HE PROVISIONS OF SECTION 32(2) AS IT STOOD BEFORE THE SAID AMENDMENT. HAD THE INTE NTION OF THE LEGISLATURE BEEN TO ALLOW THE UNABSORBED DEPRECIATION ALLOWANCE WORKED OUT IN A.Y. 1997-98 ONLY FOR EIGHT SUBSEQUENT ASSESSMENT YEARS EVEN AFTER THE AM ENDMENT OF SECTION 32(2) BY FINANCE ACT, 2001 IT WOULD HAVE INCORPORATED A PROV ISION TO THAT EFFECT. HOWEVER, ITA NO. 1665/AHD/2013 ASST. YEAR 2008-09 7 IT DOES NOT CONTAIN ANY SUCH PROVISION. HENCE KEEPI NG IN VIEW THE PURPOSE OF AMENDMENT OF SECTION 32(2) OF THE ACT, A PURPOSIVE AND HARMONIOUS INTERPRETATION HAS TO BE TAKEN. WHILE CONSTRUING TAXING STATUTES, RULE OF STRICT INTERPRETATION HAS TO BE APPLIED, GIVING FAIR AND REASONABLE CONSTRUCT ION TO THE LANGUAGE OF THE SECTION WITHOUT LEANING TO THE SIDE OF ASSESSEE OR THE REVENUE. BUT IF THE LEGISLATURE FAILS TO EXPRESS CLEARLY AND THE ASSESSEE BECOMES E NTITLED FOR A BENEFIT WITHIN THE AMBIT OF THE SECTION BY THE CLEAR WORDS USED IN THE SECTION, THE BENEFIT ACCRUING TO THE ASSESSEE CANNOT BE DENIED. HOWEVER, CIRCULAR NO . 14 OF 2001 HAD CLARIFIED THAT UNDER SECTION 32(2), IN COMPUTING THE PROFITS AND GAINS OF BUSINESS OR PROFESSION FOR ANY PREVIOUS YEAR, DEDUCTION OF DEPR ECIATION UNDER SECTION 32 SHALL BE MANDATORY. THEREFORE, THE PROVISIONS OF SECTION 32(2) .AS AMENDED BY FINANCE ACT, 2001 WOULD ALLOW THE UNABSORBED DEPRECIATION A LLOWANCE AVAILABLE IN THE A.Y. 1997-98, 1999-2000, 2000-01 AND 2001-02 TO BE CARRIED FORWARD TO THE SUCCEEDING YEARS, AND IF ANY UNABSORBED DEPRECIATIO N OR PART THEREOF COULD NOT BE SET OFF TILL THE A.Y. 2 002-03 THEN IT WOULD BE CAR RIED FORWARD TILL THE TIME IT IS SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEA RS. 38. THEREFORE, IT CAN BE SAID THAT, C URRENT DEPRECIATION IS DEDUCTIBLE IN THE FIRST PLACE FROM THE INCOME OF THE BUSINESS TO WHICH IF RELATES. IF SUCH DEPRECIATION AMOUNT IS LARGER THAN THE AMOUNT OF TH E PROFITS OF THAT BUSINESS, THEN SUCH EXCESS COMES FOR ABSORPTION FROM THE PROFITS A ND GAINS FROM ANY OTHER BUSINESS OR BUSINESS, IF ANY, CARRIED ON BY THE ASSESSEE. IF A BALANCE IS LEFT EVEN THEREAFTER, THAT BECOMES DEDUCTIBLE FROM OUT OF INCOME FROM ANY SOURCE UNDER ANY OF THE OTHER HEADS OF INCOME DURING THAT YEAR. IN CASE THERE IS A STIL L BALANCE LEFT OVER, IT IS TO BE TREATED AS UNABSORBED DEPRECIATION AND IT IS TAKEN TO THE NEXT SUCCEEDING YEAR. WHERE THERE IS CURRENT DEPRECIATION FOR SUCH SUCCEEDING YEAR TH E UNABSORBED DEPRECIATION IS ADDED TO THE CURRENT DEPRECIATION FOR SUCH SUCCEEDI NG YEAR AND IS DEEMED AS PART THEREOF. IF, ''-':- HOWEVER, THERE IS NO CURRENT DE PRECIATION FOR SUCH SUCCEEDING YEAR, THE UNABSORBED .DEPRECIATION BECOMES THE DEPRECIATI ON ALLOWANCE FOR SUCH SUCCEEDING YEAR. WE ARE OF THE CONSIDERED OPINION T HAT ANY UNABSORBED DEPRECIATION AVAILABLE TO AN ASSESSEE ON 1ST DAY OF APRIL 2002 ( A. Y. 2002-03) WILL BE DEALT WITH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE 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, THE UNABSORBED DEPRECIATION FROM A.Y. 1997- 98 UPTO THE A. Y. 2001-02 GOT CARRIED FORWARD TO THE ASSESSMENT YEAR 2002-03 AND BECAME P ART THEREOF, IT CAME TO BE GOVERNED BY THE PROVISIONS OF SECTION 32(2) AS AMEN DED BY FINANCE ACT, 2001 AND WERE AVAILABLE FOR CARRY FORWARD AND SET OFF AG AINST, THE PROFITS AND GAINS OF SUBSEQUENT YEARS, WITHOUT ANY LIMIT WHATSO EVER.,' 6.2 THE FACTS OF THE APPELLANT'S CASE ARE FULLY COV ERED BY THIS DECISION OF THE HON'BLE GUJARAT HIGH COURT WHICH IS, BEING JURISDIC TIONAL HIGH COURT BINDING IN NATURE ON THE UNDERSIGNED. THE A.O. IS DIRECTED TO ALLOW THE CARRY FORWARD ITA NO. 1665/AHD/2013 ASST. YEAR 2008-09 8 AND SET OFF OF UNABSORBED DEPRECIATION OF RS.2,94,2 7,925/- FOR A.Y. 99-2000 WHILE COMPUTING THE INCOME FOR THE YEAR UNDER CONSI DERATION. THIS GROUND OF APPEAL IS ALLOWED 11. WE FURTHER OBSERVE THAT HON. JURISDICTIONAL HIG H COURT IN THE CASE OF CIT VS. GUJARAT THEMIS BIOSYN LTD. (SUPRA) HAS ALSO DEALT A SIMILAR ISSUE WHEREIN THE ASSESSING OFFICER DENIED THE CLAIM OF SET OFF OF UNABSORBED DEPRECIATION FOR ASST. YEAR 1997-98 A GAINST THE INCOME FOR ASST. YEAR 2006-07 BY TAKING A VIEW THAT IT WAS ELIGIBLE ONLY FOR 8 YEARS WHICH EXPIRED IN ASST. YEAR 2005-0 6. HON. COURT ADJUDICATED THIS FACT DECIDING THE ISSUE IN FAVOUR OF ASSESSEE BY CONSIDERING THE DECISION IN THE CASE OF GENERAL MOT OR INDIA P. LTD. (SUPRA) BY OBSERVING AS FOLLOWS :- HELD : HIGH COURT NOTICE THAT IN THE INSTANT CASE, THE TRI BUNAL WHILE DEALING WITH THIS CASE HAS NOTED THAT THE CARRY FORWARD OF UNABSORBED DEPRECIATION CONCER NING A.Y. 2001-02 AND ASSESSMENT YEARS PRIOR THERETO CAN BE SET OFF IN SUBSEQUENT YEARS WI THOUT ANY SET TIME LIMIT, CONSIDERING THE DECISION IN THE CASE OF GENERAL MOTORS INDIA P. LTD . (SUPRA) WHEREIN THIS COURT HAS HELD THAT CARRY FORWARD OF DEPRECIATION PRIOR TO ASSESSMENT CAN BE SET OFF IN SUBSEQUENT YEARS WITHOUT SETTING TIME LIMIT. THE TRIBUNAL HAS RIGHTLY APPLIED THE LA W TO THE FACTS OF THE INSTANT CASE.CARRY FORWARD OF UNABSORBED DEPRECIATION CONCERNING PREVIOUS AYS CAN BE SET OFF IN SUBSEQUENT YEARS WITHOUT SETTING TIME LIMIT. 12. RESPECTFULLY FOLLOWING THE JUDGMENT OF HON. JUR ISDICTIONAL HIGH COURT IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. (SU PRA) AND IN THE CASE OF GENERAL MOTORS INDIA P. LTD. (SUPRA) WE ARE OF THE VIEW THAT AS PER THE PROVISIONS OF SEC.32(2) OF THE ACT AS AM ENDED BY FINANCE ACT, 2001, UNABSORBED DEPRECIATION CONCERNING ASSES SMENT YEAR 1997-98, 1999-2000, 2000-01 AND 2001-02 CAN BE SET OFF IN ITA NO. 1665/AHD/2013 ASST. YEAR 2008-09 9 SUBSEQUENT YEARS WITHOUT ANY TIME LIMIT. WE, THERE FORE, FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AN D DISMISS THE APPEAL OF REVENUE. 13. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH FEBRUARY, 2017 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 07/02/2017 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD ITA NO. 1665/AHD/2013 ASST. YEAR 2008-09 10 1. DATE OF DICTATION: 06/02/2017 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 06/02/2017 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7/2/17 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: