DCIT, Circle-6, Kolkata, Kolkata V. M/S. Orient Paper & Industries Ltd., Kolkata

ITA 1936/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1706 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2017
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 17-10-2014
• Court: TRIBUNAL
• Department Lawyers: S ALLONG YADEN CIT LD
• Assessee Lawyers: R N BAJORIA S R LD
• Keywords: Business income; Depreciation; Capital receipt; Unabsorbed depreciation; Revenue expenditure; Capital expenditure
• Section: 143(3); 32; 263

Judgement Text

1 ITA NOS.1936 & 1937/K/14 M/S. ORIENT PAPER & INDUS LTD IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA BEFORE: SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NOS. 1936 & 1937/KOL/2014 ASSESSMENT YEARS: 2006-07 & 2007-08 DEPUTY COMMISSIONER VS. M/S. ORIENT PAPER & IN DUSTRIES LTD. OF INCOME-TAX, CIR-6, PAN: AAACO 3279J KOLKATA [ APPELLANT] [RESPONDENT] FOR THE APPELLANT : SHRI SALLONG YADEN, ADDL. CIT , LD. DR FOR THE RESPONDENT : SHRI R.N. BAJORIA, S R. ADVOCATE, LD.AR DATE OF HEARING : 04-04-2017 DATE OF PRONOUNCEMENT : 09-06-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THESE TWO APPEALS BY REVENUE ARE AGAINST THE SEPARA TE ORDERS DT. 18-07-2014 PASSED BY THE CIT(A), VI, KOLKATA FOR TH E ASSESSMENT YEARS 2006-07 & 2007-08. 2. FIRST WE SHALL TAKE UP THE APPEAL IN ITA NO. 193 6/KOL/14 FOR THE A.Y 2006-07 BY THE REVENUE. 3. IN THIS APPEAL THE ONLY ISSUE THAT IS TO BE DEC IDED AS TO WHETHER THE CIT-A JUSTIFIED IN HOLDING THAT THE PURCHASE OF SAL ES TAX EXEMPTION CERTIFICATES IS A REVENUE EXPENDITURE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A COMPANY AND ENGAGED IN MANUFACTURING OF PAPERS, CEMENT, FANS AN D OTHER ENGINEERING PRODUCTS. INITIALLY, THE ASSESSMENT WAS COMPLETED U /S. 143(3) OF THE ACT ON 23-12-2011. THEREAFTER, THE CIT II KOLKATA HAVIN G EXERCISING HIS 2 ITA NOS.1936 & 1937/K/14 M/S. ORIENT PAPER & INDUS LTD JURISDICTION U/S. 263 OF THE ACT DECLARED THAT THE SAID ASSESSMENT WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E AND DIRECTED THE AO TO EXAMINE THE ISSUE REGARDING THE ALLOWABILITY OF SUM OF RS.1,62,74,997/- CLAIMED TOWARDS PURCHASE OF SALES TAX EXEMPTION CER TIFICATES AND TO FRAME THE ASSESSMENT DENOVO VIDE HIS ORDER DT. 14-03-2011. 5. DURING SUCH PROCEEDINGS THE ASSESSEE PRODUCED NE CESSARY EVIDENCE IN SUPPORT OF HIS CONTENTIONS AND CONTENDED THAT TH E SALES TAX EXEMPTION CERTIFICATES WERE PURCHASED FROM THE THREE DIFFEREN T WIND POWER PROJECTS FOR A CONSIDERATION AGGREGATING OF RS.1,62,74,997/- . IN PURSUANCE OF SALES TAX SCHEME 1998 INTRODUCED BY THE GOVT. OF MAHARASH TRA THE ASSESSEE CLAIMED CREDIT OF SALES TAX PAYMENTS BY WAY OF PURC HASE OF SALES TAX EXEMPTION CERTIFICATES. BUT, ACCORDING TO AO, THE A SSESSEE COLLECTED TOTAL SALES TAX OF RS.68,23,30,482/- AND DEPOSITED ONLY O F RS.60,94,00,944/- WITH THE SALES TAX AUTHORITIES. THE SAID AMOUNT WAS NOT CREDITED TO P & L ACCOUNT AND THE ASSESSEE DEBITED THE AMOUNT INCURR ED FOR PURCHASE OF THE SALES TAX EXEMPTION CERTIFICATES OF RS.1,62,74, 997/- TO ITS P & L ACCOUNT AS AGAINST SALES TAX EXEMPTION AVAILED OF RS.2,16,99,999/-. THE AO HAS RELIED ON THE DECISION OF THE HONBLE SPECIA L BENCH, ITAT MUMBAI IN THE CASE OF RELIANCE INDUSTRIES LTD REPORTED IN 273 ITR 16(TRIB) AND TREATED SUCH PURCHASE OF EXEMPTION CERTIFICATES WO RTH OF RS.1,62,74, 997/-AS CAPITAL EXPENDITURE AND AS SUCH ADDED THE S AME TO THE TOTAL INCOME OF THE ASSESSEE. 6. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE CIT-A AND CONTENDED BEFORE HIM THAT THE AO WAS WRONG IN PLACI NG RELIANCE ON THE DECISION OF THE HONBLE SPECIAL BENCH, ITAT, MUMBAI IN THE CASE OF RELIANCE INDUSTRIES LTD ( SUPRA) AND THE FACTS AND CIRCUMSTANCES THEREIN ARE ENTIRELY DIFFERENT FROM THE FACTS OF THE PRESE NT CASE. THE ASSESSEE FURTHER CONTENDED THAT THE GOVT OF MAHARASHTRA UND ER THE SALES TAX SCHEME 1998 PROVIDED THAT THE WIND MILL OWNERS COUL D TRANSFER SUCH SALES TAX ENTITLEMENT CERTIFICATES TO A THIRD PARTY. THE ASSESSEE PURCHASED SUCH 3 ITA NOS.1936 & 1937/K/14 M/S. ORIENT PAPER & INDUS LTD SALES TAX EXEMPTION CERTIFICATES FROM THREE DIFFERE NT WIND MILL PROJECT OWNERS WITH THE PERMISSION OF SALES TAX DEPARTMENT OF MAHARASHTRA AND IN PURSUANCE OF WHICH SUCH SALES TAX ENTITLEMENT CE RTIFICATES TRANSFERRED TO ASSESSEE. THE ASSESSEE FURTHER SUBMITTED THAT THE SAID CERTIFICATES ARE NOT SUBSIDY FROM SALES TAX DEPARTMENT. THE ASSESSE E BY PURCHASING THE SAID EXEMPTION CERTIFICATES GOT BENEFIT OF RS.54,25 ,002 (RS.2,16,99,999 RS.1,62,74,997). THE ASSESSEE CONTENDED THAT THE H ONBLE SPECIAL BENCH IN THE CASE OF RELIANCE INDUSTRIES LTD ( SUPRA) DECIDED THE ISSUE WHETHER THE SUBSIDY RECEIPT IS A REVENUE RECEIPT OR CAPITA L RECEIPT. THEREFORE, THE RATIO OF DECISION THEREIN DOES NOT APPLY TO THE PR ESENT CASE. THE CIT-A CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DELETED THE IMPUGNED ADDITION BY OBSERVING AS UNDER:- 3.2. I HAVE CONSIDERED THE FACTS OF THE CASE. THE A PPELLANT PURCHASED SALES TAX ENTITLEMENT CERTIFICATES, WHICH ENTITLED IT TO CLAIM SALES TAX EXEMPTION TO THE EXTENT OF RS.2,16,99,999/-. THE ASSESSING OFFICER HAS DISALLOWED THE COST OF PU RCHASE OF THE SAID CERTIFICATES BY TREATING THE SAME AS OF CAPITAL NATURE. HE HAS ALSO STATED T HAT THE BENEFIT OF SALES TAX WAS NOT INCLUDED IN SALES TAX COLLECTION/PAYMENT. IN THIS REGARD, IT IS NOTED, THAT THE APPELLANT WAS FOLLOWING A SYSTEM OF ACCOUNTING WHERE SALE WAS NORMALLY SHOWN EXCLUSIVE OF SALES TAX. HOWEVER, SINCE SALES TAX COLLECTED FROM THE CUSTOMER TO THE EXTENT OF EXEMPTION AVAILABLE WAS NOT REQUIRED TO BE PAID TO THE SALES TAX DEPARTMENT, THE APPELLANT HAS, AS EXPLAINED BY IT, SHOWN SUCH SALES AT A GROSS VALUE I.E. INCLUSIVE OF SALES TAX. THE APPE LLANT HAS PRODUCED A CERTIFICATE FROM ITS AUDITOR IN SUPPORT OF THIS CLAIM AND HAS INFORMED T HAT THE SAID CERTIFICATE WAS PRODUCED BEFORE THE ASSESSING OFFICER AS WELL. THUS, THE SALES, WHI CH WERE CLEARED AGAINST THE EXEMPTION CERTIFICATE WERE BOOKED AT THE AMOUNT INCLUSIVE OF THE EXEMPTION OF RS. 2,16,99,999/-. AS AGAINST THIS, IT CLAIMED THE AMOUNT OF RS.1,62,74,9 97/-, WHICH WAS THE PURCHASE PRICE OF THE SALES TAX ENTITLEMENT CERTIFICATE, AS AN EXPENDITUR E. THUS, THE APPELLANT HAD SHOWN RECEIPT OF RS.2,16,99,999/- AND EXPENDITURE OF RS. 1,62,74,997 /-. THE ASSESSING OFFICER HAS NOT SPECIFICALLY REFUTED THIS CLAIM. HE IS, HOWEVER, OF THE VIEW THAT THE COST OF SALES TAX EXEMPTION ENTITLEMENT CERTIFICATE WAS CAPITAL IN NATURE. FOR THIS, HE HAS DRAWN STRENGTH FROM THE DECISION OF SPECIAL BENCH OF TRIBUNAL IN THE CASE OF RELIANCE INDUSTRIES LTD. (SUPRA). HOWEVER, ON GOING THROUGH THE SAID DECISION, IT IS SEEN, THAT T HE SAME WAS DELIVERED IN RESPECT OF AN ASSESSEE WHO HAD RECEIVED SUBSIDY FROM GOVERNMENT F OR SETTING UP NEW INDUSTRIAL UNIT IN THE SPECIFIED BACKWARD AREA. THE HON'BLE TRIBUNAL HELD THAT SUCH SALES TAX EXEMPTION WAS IN NATURE OF SUBSIDY FOR PURPOSE OF FACILITATING THE A SSESSEE WHO SET UP INDUSTRY IN A NOTIFIED AREA AND THUS CONSTITUTED CAPITAL RECEIPT. THE MATERIAL FACTS IN THE APPELLANT'S CASE ARE QUITE DIFFERENT. HERE, THE APPELLANT HAS NOT SET UP ANY I NDUSTRIAL UNIT ELIGIBLE FOR SUBSIDY AND HENCE DID NOT RECEIVE ANY EXEMPTION AS SUCH. INSTEAD, THE UNIT WAS SET UP BY SOME OTHER COMPANY WHICH BECAME ENTITLED FOR SALES TAX EXEMPTION, TRAN SFERABLE AS PER THE TERMS OF THE SCHEME. THE APPELLANT PURCHASED SALES TAX EXEMPTION ENTITLE MENT FROM THE AFORESAID COMPANY AT A CONSIDERATION. AS A RESULT OF THIS, IT BECAME ENTIT LED FOR EXEMPTION FROM PAYMENT FOR SALES TAX TO THE EXTENT OF RS.2,16,99,999/-. THE APPELLANT OF FERED THE AMOUNT OF RS.2,16,99,999/- AS ITS INCOME AND CLAIMED THE CORRESPONDING EXPENSES OF RS .1,62,74,997/- TOWARDS PURCHASE OF EXEMPTION CERTIFICATE AGAINST THE SAME. THUS, THE A PPELLANT DID NOT GET SALES TAX EXEMPTION DUE TO SETTING UP OF ANY INDUSTRIAL UNIT OR ANY INV ESTMENT ETC. RATHER, IT WAS A PURELY COMMERCIAL TRANSACTION IN WHICH THE APPELLANT PURCH ASED THE ENTITLEMENT FROM ANOTHER PARTY AT A PRICE AND DERIVED PROFIT FROM THE SAME. NEITH ER THE RECEIPT, NOR THE EXPENDITURE INVOLVED IN SUCH TRANSACTION, WHICH IS SIMPLY COMMERCIAL IN NATURE, CAN, IN MY OPINION, BE CALLED CAPITAL IN NATURE. IN FACT, IF THE VIEW OF THE ASSESSING OF FICER, THAT THE PURCHASE PRICE OF SALES TAX EXEMPTION WAS CAPITAL IN NATURE, IS ACCEPTED, BY TH E SAME TOKEN EVEN THE RECEIPT OF RS.2,16,99,999/- WILL ALSO HAVE TO BE HELD AS CAPIT AL IN NATURE. THE APPELLANT HAS RIGHTLY TREATED BOTH ITEMS AS REVENUE IN NATURE AND HAS OFF ERED THE DIFFERENCE AS INCOME. ACTION OF THE ASSESSING OFFICER IN ACCEPTING RECEIPT AS REVEN UE AND EXPENDITURE PART AS CAPITAL IS NOT SUSTAINABLE. THE DISALLOWANCE OF RS.1,62,74,997/- I S ACCORDINGLY DELETED. ' 4 ITA NOS.1936 & 1937/K/14 M/S. ORIENT PAPER & INDUS LTD 7. THE LD.DR SUBMITS THAT THE ASSESSEE PURCHASED SA LES TAX EXEMPTION CERTIFICATES FROM OTHER ENTITIES WHICH EXPENDITURE IS CAPITAL EXPENDITURE. HE RELIED ON THE ORDER OF THE AO. 8. ON THE OTHER HAND, THE LD.AR OF THE ASSESSEE HAS RELIED ON THE ORDER OF THE CIT-A. 9. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE AO DECIDED THE ISSUE BY RE LYING ON THE DECISION OF THE SPECIAL BENCH, ITAT MUMBAI IN THE CASE OF RE LIANCE INDUSTRIES LTD (SUPRA). THE CIT-A DISTINGUISHED THE ORDER. WE FIND FROM THE IMPUGNED ORDER OF THE CIT-A THAT, THE SPECIAL BENCH DECISION IN THE CASE OF RELIANCE INDUSTRIES LTD (SUPRA) AS RIGHTLY POINTED OUT BY LD. AR, DECIDED THE ISS UE AS TO WHETHER THE SUBSIDY RECEIPT IN THAT CASE IS A REVENUE OR CAPITAL RECEIPT. WE FIND THAT IN THE PRESENT CASE THE ASSES SEE CLAIMED EXPENDITURE FROM PURCHASING CERTIFICATES FROM THIRD PARTY UNDER THE SCHEME INTRODUCED BY THE GOVT. OF MAHARSHTRA AND WITH THE PERMISSION OF THE CONCERNED DEPARTMENT. IN SUCH CIRCUMSTANCES, WE ARE OF THE V IEW THAT THE CIT-A WAS JUSTIFIED IN DELETING SAME. WE UPHOLD THE ORDER OF THE CIT-A. THEREFORE, THE GROUND RAISED BY THE REVENUE IS DISM ISSED. 10. THE APPEAL OF THE REVENUE IN ITA NO. 1936/K/14 FOR THE A.Y 2006-07 IS DISMISSED. 11. NOW, WE SHALL TAKE UP THE OTHER APPEAL IN ITA N O. 1937/K/14 A.Y 2007-08 BY THE REVENUE. 12. GROUND NO.1 RELATES TO DELETION OF AN ADDITION OF RS.4,27,18,750/- MADE ON ACCOUNT OF PURCHASE OF SALES TAX EXEMPTION CERTIFICATES BEING REVENUE EXPENDITURE BY THE CIT-A. 5 ITA NOS.1936 & 1937/K/14 M/S. ORIENT PAPER & INDUS LTD 13. WE FIND THAT THIS ISSUE IS SIMILAR AND IDENTICA L TO THE FACTS OF THE ABOVE MENTIONED APPEAL IN ITA NO. 1936/KOL/2014 FOR THE A.Y 2006-07, WHEREIN WE HELD THAT THE PURCHASE OF SALES TAX EXEM PTION CERTIFICATES OF RS. 1,62,74,997/- IS A REVENUE EXPENDITURE. THEREFO RE, WE ADOPT THE VIEW TAKEN BY US IN APPEAL FOR A.Y 2006-07 AND AS SUCH G ROUND NO.1 RAISED BY THE REVENUE IN ITA NO. 1937/K/14 FOR THE A.Y 2007-0 8 FAILS AND IT IS DISMISSED. 14. GROUND NO. 2 IS RELATING TO DISALLOWANCE OF SET OFF ON UNABSORBED DEPRECIATION OF RS.17,57,36,896/- CARRIED FORWARD F ROM A.Y 1998-99. 15. THE AO FOUND THAT THE ASSESSEE HAS CLAIMED SET OFF OF UNABSORBED DEPRECIATION. THE AO DID NOT ALLOW THE SET OFF BEYO ND EIGHT (8) YEARS TAKING INTO CONSIDERATION THE AMENDMENT MADE IN FIN ANCE (NO.2) ACT, 2006. ACCORDING TO HIM, THE UNABSORBED DEPRECIATION CAN BE CARRIED FORWARD FOR EIGHT (8) YEARS. THE ASSESSEE CLAIMED T HE UNABSORBED DEPRECIATION OF RS. 17,57,36,896/- CARRIED FORWARD FROM THE A.Y 1998-99 AND SINCE 8 YEARS HAVE EXPIRED THE AO HAS NOT CONSI DERED THE CLAIM OF SUCH UNABSORBED DEPRECIATION OF RS.17,57,36,896/- A ND ADDED THE SAME TO THE TOTAL INCOME. 16. THE CIT-A PLACING RELIANCE ON THE DECISION OF M UMBAI TRIBUNAL, WHICH IN TURN FOLLOWING THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTOR (I) PVT. LTD SUPRA REPORTED IN 354 ITR 244(GUJ) DELETED THE IMPUGNED ADDITION BY STATING A S UNDER:- 2.11 MUMBAI ITAT IN CASE OF M/S. ARCH FINE CHEMICAL S P LTD VS. ACIT [DATED 9TH OCTOBER 2013 IN ITA NO.2414 AND 24151MUMI2012 ( ASSESSMENT YEARS: 2005-06 & 2006-07)] FOLLOWING THE JUDGMENT OF THE GUJARAT HIGH COURT HE LD AS UNDER:- 'WE HAVE ALSO GONE THROUGH THE DECISION OF THE HON' BLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA PVT.(SUPRA) WHEREIN THEIR L ORDSHIPS HAVE STATED THAT THE AMENDMENT MADE BY FINANCE (NO.1) ACT WAS CLARIFIED BY CBDT VIDE CIRCULAR NO.14 OF 2001. THE SAID AMENDMENT IS APPLICABLE FROM ASSESSMENT YE AR 2002-03 AND SUBSEQUENT YEARS. THAT UNABSORBED DEPRECIATION AVAILABLE TO AN ASSESS EE ON FIRST DAY OF APRIL 2002 (ASSESSMENT YEAR 2002-03) WILL BE DEALT WITH IN ACC ORDANCE WITH THE PROVISIONS OF SECTION 32(2) OF THE ACT AS AMENDED BY FINANCE (NO.1) ACT, 2001 AND NOT BY PROVISIONS OF SECTION 32(2) AS IT STOOD BEFORE THE SAID AMENDMENT. THEIR LORDSHIPS HAVE STATED HAD THE INTENTION OF THE LEGISLATURE BEING TO ALLOW UNABSORBED DEPREC IATION ALLOWANCE AVAILABLE IN THE ASSESSMENT YEARS 1997-98, 1999-2000, 2000-01 AND 20 01- 02 TO BE CARRIED FORWARD TO THE SUCCEEDING YEARS AND IF ANY UNABSORBED DEPRECIATION OR PART THEREOF COULD NOT SET OFF TILL THE ASSESSMENT YEAR 2002- 03, THEN IT WOULD BE CARRIED FORWARD TILL THE TIME IT IS SET OFF AGAINST 6 ITA NOS.1936 & 1937/K/14 M/S. ORIENT PAPER & INDUS LTD THE PROFITS AND GAINS OF SUBSEQUENT YEARS WITHOUT A NY LIMIT WHATSOEVER. IN VIEW OF ABOVE DECISION OF THE HON'BLE GUJARAT HIGH COURT AND ALSO CONSIDERING THE DECISION OF ITAT, MUMBAI BENCH IN THE CASE OF GRAHAM FIRTH STEEL PROD UCTS (I) LTD. (SUPRA), WE HOLD THAT ID. CIT(A) IS NOT JUSTIFIED IN NOT ALLOWING SET OFF OF UNABSORBED DEPRECIATION FOR THE ASSESSMENT YEARS 1997-98 AND 1998-99 AGAINST THE PROFIT FOR TH E ASSESSMENT YEARS 2005-06 AND 2006- 07. HENCE, WE VACATE THE ORDERS OF AUTHORITIES BELO W AND DIRECT THE AO TO ALLOW UNABSORBED DEPRECIATION FOR THE ASSESSMENT YEARS 1997-98 AND 1 998-99 AGAINST THE PROFIT FOR THE ASSESSMENT YEARS UNDER CONSIDERATION AND IF ANY AMO UNT IS LEFT UNABSORBED, THE SAME SHOULD BE ALLOWED TO BE CARRIED FORWARD AND BE SET OFF AGAINST THE PROFIT AND GAINS OF SUBSEQUENT YEARS TILL THE ENTIRE AMOUNT OF UNABSORB ED DEPRECIATION IS SET OFF.' 4.4. FOLLOWING THE RATIO GIVEN BY THE HON'BLE GUJAR AT HIGH COURT IN THE CASE OF GENERAL MOTOR (INDIA) PVT. LTD (SUPRA) AND ITAT, CHENNAI IN THE C ASE OF KMC SPECIALITY HOSPITALS INDIA LTD(SUPRA), AND BEST AND CROMPTON ENGINEERING LTD ( SUPRA) ETC., AS WELL AS THE EARLIER DECISIONS OF JURISDICTIONAL HIGH COURT IN THE CASE OF RELIANCE JUTE MILLS CO LTD. (SUPRA) CONFIRMED BY THE APEX COURT, IT IS HELD THAT THE UN ABSORBED DEPRECIATION FOR THE ASSESSMENT YEAR 1998-99 GOT MERGED WITH DEPRECIATION FOR THE A SSESSMENT YEAR 2002-03 AND THEREFORE, BECAME ENTITLED FOR CARRY FORWARD FOR AN INDEFINITE PERIOD. THEREFORE, THE ASSESSING OFFICER WAS NOT CORRECT IN DISALLOWING THE CLAIM FOR SET OFF FO R UNABSORBED DEPRECIATION FOR THE ASSESSMENT YEAR 1998-99. THE DISALLOWANCE IS ACCORDINGLY DELET ED. 17. THE LD.DR RELIED ON THE ORDER OF THE AO. 18. THE LD. AR OF THE ASSESSEE PLACED HIS RELIANCE ON THE ORDER DT. 11- 05-2016 OF THE CO-ORDINATE BENCH OF ITAT KOLKATA I N THE CASE OF M/S. EPCOS INDIA PVT. LTD AND PLACED ON RECORD COPY OF T HE SAME. 19. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. WE FIND THAT THE CIT-A BY FOLLOWING THE DEC ISION OF MUMBAI TRIBUNAL, WHEREIN IT FOLLOWED THE RATIO OF DECISION RENDERED BY THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF GENERAL MOTORS (INDIA) PVT. LTD, WHEREIN IT HELD THAT IF ANY UNABOSRBED DEPRECIATION OR PART THEREIN COULD NOT SET OFF AND IT WOULD BE CARRIED FORWARD TILL T HE TIME OF SET OFF AGAINST PROFIT AND GAINS OF SUBSEQUENT YEARS WITHOUT ANY LI MIT WHATSOEVER. WE FIND THAT THE DECISION AS RELIED ON BY THE LD.AR OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SUPRA ALSO FOLLOWED THE SAID DECISION OF THE HONBLE HIGH COURT OF GUJARAT AND ALLOWED THE CARR IED FORWARD OF UNABSORBED DEPRECIATION. RELEVANT PORTIONS OF WHICH ARE REPRODUCED HEREIN BELOW FOR BETTER UNDERSTANDING:- 12. THE PROVISIONS OF SEC.32(2) AS SUBSTITUTED BY T HE FINANCE ACT , 2001 W.E.F. 1ST APRIL, 2002, APPLICABLE FOR AY 2004-05 & 2005-06 ) ASSESSMENT YE ARS 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, OWING TO THERE BEING NO PROFI TS OR GAINS CHARGEABLE FOR THAT PREVIOUS YEAR, OR O WING TO THE PROFITS OR GAINS CHARGEABLE BEING LESS THAN THE ALLOWANCE, THEN, SUBJECT TO THE PROVISIONS OF S UB-S. (2) 7 ITA NOS.1936 & 1937/K/14 M/S. ORIENT PAPER & INDUS LTD OF S. 72 AND SUB-S. (3) OF S. 73 , THE ALLOWANCE OR THE PART OF THE ALLOWANCE TO WHI CH EFFECT HAS NOT BEEN GIVEN, AS THE CASE MAY BE, SHALL BE ADDED TO THE AMOUNT OF THE ALLOWANCE FOR DEPRECIATION FOR THE FOLLOWING PREVIOUS YEAR AND DEEMED TO BE PART OF THAT ALLOWAN CE, OR IF THERE IS NO SUCH ALLOWANCE FOR THAT PREVI OUS YEAR, BE DEEMED TO BE THE ALLOWANCE FOR THAT PREVIO US YEAR, AND SO ON FOR THE SUCCEEDING PREVIOUS YEAR S'. 13. THE ABOVE PROVISION IN FACT, IS REINFORCEMENT O F THE PROVISION AS EXISTING IN THE FIRST PERIOD. TH US THE LAW AS EXISTING IN THE SECOND PERIOD WAS COMPLETELY TAKEN BACK AND AS A RESULT OF THAT THE PROVISION A S PREVAILING IN THE FIRST PERIOD WAS RESTORED. THE AO WAS OF THE VIEW THAT THE CLAIM OF THE ASSESSEE FOR CARRY FORWARD OF UNABSORBED DEPRECIATION FOR 94-95 TO 96- 97 FOR SET OFF AFTER THE PERIOD OF 8 YEARS CANNOT B E ALLOWED BECAUSE UNABSORBED DEPRECIATION FOR AY 94-9 5 AND 95-96 TOTALLING RS.8,77,48,743 BECOMES CURRENT YEAR DEPRECIATION OF AY 96-97 AND AS PER TH E LAW APPLICABLE FROM AY 1996-97 (SECOND PERIOD) UNABSORBED DEPRECIATION CAN BE CARRY FORWARD AND SE T 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 DEPRECIATION CANNOT BE CARRY FORWARD FOR SET OFF. SIMILAR REASONING WAS ADOPTED BY THE AO FOR WITHDRAWING CARRY FORWARD OF UNABSORBED DEPRECIATION OF RS.3,24,68,197/- OF AY 1 997-98 CLAIMED IN AY 2005-06. 14. THE POSITION OF UNABSORBED DEPRECIATION FOR AY 1994-95 TILL 2003-04 IS GIVEN AS AN ANNEXURE TO THI S ORDER FOR BETTER APPRECIATION OF 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 ITA NOS.815&81 6/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIVATE LIMITED. A.YRS.2004-05 & 2005-06 SAME IS NOT ALLOWABLE TO BE CARRIED FORWARD TO SUBSEQUENT YEARS UNDER THE PROVISIONS OF THE ACT. UNDER THE AMENDED PROVISIONS THE ABOVE UNABSORBED DEPRECIATION WERE ELIGIBLE FO R SET OFF UP TO AY. 2004-05 AND CANNOT BE CARRIED FOR WARD TO SUBSEQUENT YEARS. 15. THE AO IN COMING TO THE ABOVE CONCLUSION BY PLA CING RELIANCE ON THE SPECIAL BENCH DECISION OF ITAT MUMBAI IN THE CASE OF DCIT VS. TIMES GUARTEE LTD. ( 2010) 40 SOT 14 (SB)(MUM) WHEREIN IT WAS HELD THE PROVISIONS OF SEC.32(2) AS SUBSTITUTED BY THE FINANCE ACT , 2001 W.E.F. 1ST APRIL, 2002, WHICH IS REINFORCEMENT OF THE PROVISION AS EXISTING IN THE F IRST PERIOD I.E., PRIOR TO 1ST APRIL, 1997. THUS TH E 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 RES TORED. 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 THA T THE AMENDMENT TO SUBSTANTIVE PROVISION IS NORMALLY PROS PECTIVE UNLESS EXPRESSLY STATED OTHERWISE OR IT APPEARS SO BY NECESSARY IMPLICATION. THE SPECIAL BE NCH SUMMARISED ITS CONCLUSIONS THUS: 'THE LEGAL POSITION OF CURRENT AND BROUGHT FORWARD UNADJUSTED/UNABSORBED DEPRECIATION ALLOWANCE IN THE THREE PERIODS, IS SUMMARIZED AS UNDER : A. IN THE FIRST PERIOD (I.E. UPTO ASST. YR. 1996-97 ) (I) CURRENT DEPRECIATION, THAT IS THE AMOUNT OF A LLOWANCE FOR THE YEAR UNDER S. 32(1) , CAN BE SET OFF AGAINST INCOME UNDER ANY HEAD WITH IN 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 CURRENT YEAR IN THE FOLLOWING YEAR(S) TO BE SET OFF AGAINST INCOME UNDER ANY HEAD, LIKE CURR ENT DEPRECIATION. B. IN THE SECOND PERIOD (I.E. ASST. YRS. 1997-98 TO 2001-02). (I) BROUGHT FORWARD UNADJUSTED DEPRECIAT ION ALLOWANCE FOR AND UPTO ASST. YR. 1996-97 (HEREINAFT ER CALLED THE 'FIRST UNADJUSTED DEPRECIATION ALLOWA NCE'), WHICH COULD NOT BE SET OFF UPTO ASST. YR. 1996-97, SHALL BE CARRIED FORWARD FOR SET OFF AGAINST INCOME UNDER ANY HEAD FOR A MAXIMUM PERIOD OF EIGHT ASSESSMENT Y EARS STARTING FROM 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 AGAINST BUSINESS IN COME AND THEN AGAINST INCOME UNDER ANY OTHER HEAD. (III) AMOUNT OF 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 DE PRECIATION ALLOWANCE' 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 FIRST COMPUTED, TO BE SET OFF ONLY AGAINST THE INCOME UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION'. ITA NOS.815&816/KOL/2013 & C.O.NOS.57&58/KOL/2013 M /S.EPCOS INDIA PRIVATE LIMITED. A.YRS.2004-05 & 2005-06 C. IN THE THIRD PERIOD (I.E . ASST. YR. 2002-03 ONWARDS). (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 YEARS (AS PER B( I) ABOVE) AGAINST INCOME UNDER ANY HEAD. (II) 'SECO ND UNABSORBED DEPRECIATION ALLOWANCE' CAN BE SET OFF O NLY AGAINST THE INCOME UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION' WITHIN A PERIOD OF EIGHT ASSESSMENT YEARS SUCCEEDING THE ASSESSMENT Y EAR 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. 2002-03 CAN BE SET OFF AGAINST INCOME UNDER ANY HEAD. AMOUNT OF DEPRECIATION ALLOWANCE NOT SO SET OFF (HEREINAFTER CALLED THE 'THIRD UNADJUSTED DEPRECIATION ALLOWANCE ') SHALL BE CARRIED FORWARD TO THE FOLLOWING YEAR. (IV ) THE 'THIRD UNADJUSTED DEPRECIATION ALLOWANCE' SHA LL BE DEEMED AS DEPRECIATION UNDER S. 32(1) , THAT IS DEPRECIATION FOR THE CURRENT YEAR IN THE FOLLOWING YEAR(S) TO BE SET OFF AGAINST INCOME UNDER ANY HEAD, LIKE CURR ENT DEPRECIATION, IN PERPETUITY. 16. BEFORE CIT(A) THE ASSESSEE RELIED ON THE DECISI ON OF THE GUJARAT HIGH COURT IN THE CASE OF.GENERAL MOTORS INDIA PVT. LTD. -VS.- DCIT (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 FORWARD TO AY. 2002-03 AND BECAME PART THEREOF AND IT CAME TO BE GOVERNED BY THE 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 LIMIT. THE RELEVANT EX TRACTS OF THE JUDGMENT IS AS UNDER: 8 ITA NOS.1936 & 1937/K/14 M/S. ORIENT PAPER & INDUS LTD '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) WILL BE DEALT WITH IN AC CORDANCE WITH THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE ACT , 2001. AND ONCE THE CIRCULAR NO. 14 OF 2001 CLARIF IED THAT THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED D EPRECIATION 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 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 T HE CASE OF GENERAL MOTORS INDIA PVT. LTD. (SUPRA) H AS BEEN FOLLOWED BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT - VS.- GUJARAT THEMIS BIOSYN LTD . (2014) 44 TAXMANN.COM 204 (GUJ.). IN THIS CASE THE HON'BLE HIGH COURT UPHELD THE VIEW TAKEN BY THE ITA T WHEREIN, FOLLOWING THE ITA NOS.815&816/KOL/2013 & C .O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIVATE LIMITED. A.YRS.2004-05 & 2005-06 DECISION OF THE HON'BLE GUJ ARAT HIGH COURT IN THE CASE OF GENERAL MOTORS LTD. (SUPRA), IT WAS HELD THAT CARRY FORWARD OF UNABSORB ED DEPRECIATION CONCERNING AY. 2001-02 AND ASSESSMENT YEARS PRIOR THERETO CAN BE SET OFF IN SU BSEQUENT YEARS WITHOUT ANY SET TIME LIMIT. 18. REFERENCE WAS FURTHER MADE TO THE DECISION OF T HE HON'BLE JURISDICTIONAL TRIBUNAL IN THE CASE OF B ENGAL TEA & FABRICS LIMITED (ITA NO 467/KOLL2012) DATED 2 6TH 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 DEPRECI ATION FOR THE AYS 1997-98 AND 1998-99 AGAINST THE INCOME OF THE AY 2008-09 (I.E. BEYOND ASSESSMENT YE ARS 2004-05/2005-06). THE HON'BLE KOLKATA TRIBUNAL AFTER ANALYZING AND ACCEPTING THE PRINCIPLES OF THE DECISIONS OF THE HON'BLE KARNATAKA HIGH COURT IN T HE CASE OF KARNATAKA COOPERATIVE MILK PRODUCERS FEDERA TION LTD. -VS.- DC IT (2011) 53 DTR 81 (KAR) AND HON'BLE AMRITSAR TRIBUNAL IN THE CASE OF ITO -VS- S URAJ SOLVENT VANASPATI INDUSTRIES LTD. (2008) 16 DT R 492 (AMRITSAR) AND FURTHER ACCEPTING THE FACT THAT SINCE 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 VIE W OF THE AMENDED PROVISIONS OF THE SECTION 32(2) OF THE ACT TO ALLOW THE ASSESSEE TO CARRY FORWARD THE DEPRECIATION ALLOWANCE FOR THE PREVIOUS YEAR 2004-0 5 AND 2005-06. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF COOPERATIVE MILK 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 F ROM EIGHT YEARS FOR AN UNLIMITED PERIOD. FURTHER, CARRY ING FORWARD OF UNABSORBED DEPRECIATION FOR EVERY YE AR HAS TO BE CALCULATED INDIVI ALLY BASED ON AUDIT REP ORT AND TO ARRIVE AT THE EXACT AMOUNT TO BE CARRIED FORWARD. 19. THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE. T HE FOLLOWING WERE THE RELEVANT OBSERVATIONS OF THE CIT(A): '8. APPEAL ON GROUND NO. 4 AND 5 ARE AGAINST THE DI SALLOWANCE OF CARRY FORWARD OF UNABSORBED DEPRECIATION OF RS. 8,77,48,743/-. THE A.O. IN HIS ASSESSMENT ORDER HAS CLEARLY MENTIONED THAT UNABSOR BED DEPRECIATION OF ASSESSMENT YEAR 1994-95 TO 1996-97 WAS TO BE CLAIMED / SET OFF UPTO ASSESSMENT YEAR 2004-05 ONLY IT COULD NOT BE CARRIED ITA NOS.815&81 6/KOL/2013 & C.O.NOS.57&58/KOL/2013 M/S.EPCOS INDIA PRIVATE LIMITED. A.YRS.2004-05 & 2005-06 FORWARD AND SET OFF BEYOND THAT. DURING THE APPELLATE PROCEEDING THE A.R. HAS SUBMITTED A COPY OF THE ORDER OF THE JURISDICTIONAL HON'BLE KOLKATA TRIBUNAL IN THE CASE OF BENGAL TEA & FABRICS LTD. VS. DCLT CIR-4, KOLKATA (ITA NO. 467/K OL/2012 DT. 26-07-2012) WHEREIN THE TRIBUNAL HAS CATEGORICALLY GIVEN ITS FINDING THAT THE ASSESSEE C OMPANY WOULD BE ENTITLED TO SET OFF UNABSORBED DEPRECIATION .OR THE A.YS. 1997-98, 1998-99 AGAINST THE INCOME OF A.Y. 2008-09 (I.E. BEYOND THE A.YS.2 004- 05/2005-06). THE HON'BLE KOLKATA TRIBUNAL HAS ALSO DISCUSSED, ANALYZED 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 (KARNATAKA) ON THE SAME ISSUE. I HAVE CONSIDERED THE FINDING OF TH E A.O. IN THE ASSESSMENT 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 C ASE IS SQUARELY COVERED BY THE KOLKATA TRIBUNAL'S D ECISION IN THE CASE OF BENGAL TEA & FABRICS LTD. (SUPRA). T HUS., RESPECTFULLY FOLLOWING THE RATIO DECIDED BY T HE JURISDICTIONAL APPELLATE TRIBUNAL, ASSESSEE'S APPEA L ON GROUND NO.4 AND 5 ARE ALLOWED.' 20. AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVEN UE HAS PREFERRED THE PRESENT APPEALS BEFORE THE TRIBUNAL. 21. WE HAVE HEARD THE SUBMISSIONS OF THE LEARNED DR 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 AR E OF THE VIEW THAT IN THE LIGHT OF THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF GENERAL M OTORS INDIA PVT. LTD. (SUPRA) WHICH HAS THE EFFECT OF OVERRULING THE DECISION OF THE SPECIAL BENCH IN THE CASE OF TIMES GURANTEE (SUPRA) AND ALSO ON THE BAS IS 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. 9 ITA NOS.1936 & 1937/K/14 M/S. ORIENT PAPER & INDUS LTD 23. SINCE THE APPEALS BY THE REVENUE ARE DISMISSED, THE CROSS OBJECTIONS IN WHICH THE ASSESSEE HAS CHALLENGED THE VALIDITY OF INITIATION OF REASSESSME NT PROCEEDINGS U/S.147 OF THE ACT IN AY 2004-05 & 2 005- 06 ARE CHALLENGED, DOES NOT REQUIRE ANY ADJUDICATIO N AND IS DISMISSED AS NOT REQUIRING ADJUDICATION. RESPECTFULLY FOLLOWING THE ABOVE AND DETAILED DISCU SSION AS MADE BY US, WE UPHOLD THE ORDER OF THE CIT-A ON THIS ISSUE. THE GROUND NO.2 RAISED BY THE REVENUE IS DISMISSED. 20. IN THE RESULT, BOTH THE APPEALS OF THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09 -06-2017 SD/- SD/- J.SUDHAKAR REDDY S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 09-06-2017 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT/REVENUE THE DCIT, CIR-6, AAYKAR BHAWAN , 6 TH FLOOR, ROOM NO. 6/17, P-7 CHOWRINGHEE SQ., KOL-69. 2 RESPONDENT/ASSESSEE M/S. ORIENT PAPER & INDUSTRIE S LTD 9/1 R.N MUKHERJEE ROAD, KOLKATA-1 3 . THE CIT(A), KOLKATA 4. THE CIT KOLKATA 5.DR,ITAT,KOL 6. GUARD FILE TRUE COPY BY ORDER SR.PS, H.O.O ITAT KOLKATA