M/s. Rieter LMW Machinery Ltd., Coimbatore V. ACIT, Coimbatore

ITA 1991/CHNY/2007

• Counselvise Citation: 199121714 RSA 2007
• Duration Of Justice: 5 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 10-12-2012
• Assessment Year: 1999-2000
• Appeal Filed On: 09-08-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRISHAJI P JACOB
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Business income; Depreciation; Unabsorbed depreciation
• Section: 10B; 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER I.T.A. NO. 1991/MDS/2007 (ASSESSMENT YEAR :1999-2000) M/S RIETER-LMW MACHINERY LTD., SULUR RAILWAY FEEDER ROAD, MUTHUGOUNDENPUDUR, COIMBATORE 641 406. PAN : AABCR0309M (APPELLANT) V. THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE IV(2), COIMBATORE. (RESPONDENT) APPELLANT BY :SHRI R. VIJAYARAGHAVAN, ADVOCATE RESPONDENT BY :SHRISHAJI P. JACOB, CIT DATE OF HEARING : 10.12.2012 DATE OF PRONOUNCEMENT : 20.12.2012 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE, WHEREIN IT HAS TAKEN SEVEN GROUNDS IN TOTAL, IS DIRECTED AGAINST ORDER DATED 1 8.6.2007 OF COMMISSIONER OF INCOME TAX (APPEALS)-I, COIMBATORE. I.T.A. NO. 1991/MDS/07 2 2. WHEN THE APPEAL WAS CALLED UP FOR HEARING, LEARN ED A.R. SUBMITTED THAT HE WAS NOT SERIOUS IN ARGUING GROUND S NO.1, 2, 4 AND 6. ACCORDINGLY, THESE GROUNDS ARE DISMISSED AS NOT PRESSED. 3. GROUND NO.7 IS GENERAL IN CHARACTER NEEDING NO A DJUDICATION. THIS LEAVES US WITH GROUNDS NO.3 AND 5. GROUND NO. 3 IS REPRODUCED HEREUNDER:- THE LEARNED CIT(A), HAS ERRED IN HOLDING THAT THE A CTION OF THE ASSESSING OFFICER, IN BRINGING TO TAX THE PROFIT O N SALE OF IMPORT LICENCE OF ` 15,83,830/-, NOTWITHSTANDING THAT IT WAS DEEMED PROFIT, DERIVED FROM 100% E.O.U., QUALIFYING IN FU LL, FOR RELIEF U/S 10B, AND THE CLAIM WAS SUSTAINABLE IN THE FACTS AN D THE CIRCUMSTANCES OF THE CASE AND IN LAW. 4. FACTS APROPOS ARE THAT ASSESSEE HAD CLAIMED DEDU CTION UNDER SECTION 10B OF INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') ON PREMIUM OF ` 15,83,830/- RECEIVED ON SALE OF IMPORT LICENCE DUR ING THE IMPUGNED ASSESSMENT YEAR. EXPLANATION OF THE ASSES SEE WAS THAT THESE WERE INCENTIVES GIVEN TO EXPORTERS AS A MEASU RE OF AUGMENTING FOREIGN EXCHANGE EARNINGS AND THEREFORE, DEDUCTION CLAIMED UNDER SECTION 10B WOULD BE AVAILABLE FOR SUCH AMOUNT ALSO . HOWEVER, THIS WAS NOT ACCEPTED BY THE ASSESSING OFFICER, SINCE AC CORDING TO HIM, PREMIUM ON SALE OF IMPORT LICENCE WAS NOT RELATED T O PROFITS DERIVED FROM ASSESSEES INDUSTRIAL UNDERTAKING. THOUGH THE SAID AMOUNT WAS I.T.A. NO. 1991/MDS/07 3 NOT TREATED AS ELIGIBLE FOR DEDUCTION UNDER SECTION 10B OF THE ACT, IT STILL WAS CONSIDERED ONLY UNDER THE HEAD INCOME FR OM BUSINESS. ASSESSEE HAD A DEPRECIATION LOSS OF ` 1,21,94,805/- FOR THE IMPUGNED ASSESSMENT YEAR BUT, SUCH DEPRECIATION LOSS WAS NOT SET OFF BY THE ASSESSING OFFICER AGAINST THE PREMIUM OF ` 15,83,830/- RECEIVED ON SALE OF IMPORT LICENCE. DEPRECIATION LOSS WAS ALLO WED TO BE CARRIED FORWARD WITHOUT ALLOWING A SET-OFF. 5. ASSESSEE MOVED IN APPEAL BEFORE CIT(APPEALS), WH ERE ONE OF THE GROUNDS RAISED READ AS UNDER:- 3. THE ACTION OF THE ASSISTANT COMMISSIONER OF INCO ME TAX, IS WRONG AND ERRONEOUS, ALL THE WAY, IN REJECTING THE ARGUMENTS OF THEAPPELLANT, IN THE COURSE OF THE RE-ASSESSMEN T PROCEEDINGS AND IN FORMING HIS OWN OPINION, ON TH E INTERPRETATIONOF THE VARIOUS PROVISIONS OF THE AC T, DEALING WITHTHE UNABSORBED DEPRECIATION,U/S 32(2), DEDUCTI ON U/S 35D AND 35AB, SCRAP SALES, PREMIUM ON SALE OF IMPO RT LICENCE, FOR RE-DETERMINING THE TOTAL INCOME AT ` 28,70,480/-, IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND INLAW . 6. ARGUMENT OF THE ASSESSEE WAS THAT ITS EXPORT TUR NOVER WAS MORE THAN 75% OF THE VALUE OF THE ARTICLES MANUFACT URED AND THEREFORE, PREMIUM ON SALE OF IMPORT LICENCE COULD NOT BE BROUGHT TO TAX AS AN ITEM OF INCOME ON WHICH DEDUCTION UNDER SECTION 10B WAS NOT AVAILABLE. HOWEVER, LD. CIT(APPEALS) WAS NOT I MPRESSED. ACCORDING TO HIM, ASSESSEE HAD, FOR ASSESSMENT YEAR 2000-01, I.T.A. NO. 1991/MDS/07 4 ACCEPTED PREMIUM ON SALE OF IMPORT LICENCE AS NOT PROFITS DERIVED FROM INDUSTRIAL UNDERTAKING. THEREFORE, ACCORDING TO HIM, ASSESSING OFFICER WAS JUSTIFIED IN CONSIDERING THE SAID AMOUN T AS INCOME UNDER THE HEAD BUSINESS WHILE NOT ALLOWING THE EXEMPTION CLAIMED UNDER SECTION 10B OF THE ACT. IN THIS VIEW OF THE MATTER , HE CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 7. NOW BEFORE US, LEARNED A.R., STRONGLY ASSAILING THE ORDERS OF AUTHORITIES BELOW, SUBMITTED THAT PROFIT ON SALE OF IMPORT LICENCE WAS ADMITTEDLY CONSIDERED UNDER THE HEAD INCOME FROM B USINESS. ACCORDING TO HIM, THAT BEING THE CASE, IT WAS INCUM BENT ON THE LOWER AUTHORITIES TO ALLOW SET OFF OF UNABSORBED DEPRECIA TION OF THE IMPUGNED ASSESSMENT YEAR AGAINST SUCH INCOME. THIS WAS ONLY A CONSEQUENTIAL RELIEF THAT OUGHT HAVE BEEN GRANTED. ACCORDING TO HIM, SUCH CONSEQUENTIAL RELIEF COULD HAVE BEEN GRANTED T O THE ASSESSEE EVEN WITHOUT A SPECIFIC PLEADING ON THIS POINT. IN ANY CASE, ACCORDING TO HIM, GROUNDS BEFORE THE CIT(APPEALS) HAD MENTION ED THAT UNABSORBED DEPRECIATION UNDER SECTION 32(2) WAS NOT CORRECTLY INTERPRETED BY THE ASSESSING OFFICER. HOWEVER, LEA RNED A.R. FAIRLY ADMITTED THAT THE INCOME COULD NOT BE CONSIDERED FO R DEDUCTION UNDER SECTION 10B OF THE ACT, IN VIEW OF DECISION OF HON' BLE APEX COURT IN THE CASE OF LIBERTY INDIA V. CIT (317 ITR 218). NE VERTHELESS, I.T.A. NO. 1991/MDS/07 5 ACCORDING TO HIM, GRIEVOUS INJUSTICE WAS DONE TO TH E ASSESSEE WHEN SET OFF WAS NOT ALLOWED AGAINST UNABSORBED DEPRECIA TION. 8. PER CONTRA, LEARNED D.R., STRONGLY SUPPORTING TH E ORDERS OF AUTHORITIES BELOW, SUBMITTED THAT THERE WAS NO GROU ND TAKEN BY THE ASSESSEE FOR SUCH SET OFF OF UNABSORBED DEPRECIATIO N WITH INCOME FROM SALE OF IMPORT LICENCE. ACCORDING TO HIM, IT WAS A FRESH GROUND NOW TAKEN BEFORE THE TRIBUNAL, AND THEREFORE COULD NOT BE CONSIDERED AT ALL. 9. AD LIBITUM, LEARNED A.R. SUBMITTED THAT IF SOME RELIEF WAS AVAILABLE TO THE ASSESSEE, IT WAS THE ARDENT DUTY O F THE AUTHORITIES BELOW TO GRANT SUCH RELIEF TO THE ASSESSEE. WHEN T HE AMOUNT WAS CONSIDERED AS INCOME FROM BUSINESS ON WHICH, DEDUCT ION UNDER SECTION 10B WAS RULED AS NOT AVAILABLE, THEN UNABSO RBED DEPRECIATION FOR THE RELEVANT PREVIOUS YEAR, OUGHT HAVE BEEN ALLOWED TO BE SET OFF. RELIANCE WAS PLACED ON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. RAM NATH GOENKA(DECD.) AND OTHERS (252 ITR 653). 10. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. IT IS NOT DISPUTED THAT THE AMOUNT RECEIVED BY THE ASSESSEE ON SALE OF IMPORT LICENCE WAS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 10B OF THE I.T.A. NO. 1991/MDS/07 6 ACT. IN FACT, LEARNED A.R. HAS AGREED ON THIS. HI S ONLY GRIEVANCE IS THAT UNABSORBED DEPRECIATION OF THE IMPUGNED ASSESS MENT YEAR WAS NOT SET OFF TO THE EXTENT AVAILABLE AGAINST SUCH IN COME. ASSESSMENT ORDER CLEARLY MENTIONS IN THE LAST PARA THAT FOR AS SESSMENT YEAR 1999- 2000, THERE WAS A DEPRECIATION LOSS OF ` 1,21,94,805/-. THE AMOUNT RECEIVED BY THE ASSESSEE ON SALE OF IMPORT LICENCE WAS ` 15,83,830/- AND THIS WAS UNDISPUTEDLY CONSIDERED UNDER THE HEAD INCOME FROM BUSINESS. IN OUR OPINION, IN SUCH CIRCUMSTANCES, EVEN A WITHOUT SPECIFIC PLEADING FROM THE ASSESSEE, ASSESSING OFFI CER OUGHT HAVE ALLOWED SET OFF WHICH WAS STATUTORILY AVAILABLE TO THE ASSESSEE. NO DOUBT, GROUND NO.3 BEFORE THE CIT(APPEALS) IN THIS REGARD APPEARS TO BE A BIT VAGUE. HOWEVER ASSESSEE HAD RAISED A PLEA THAT SECTION 32(2) DEALING WITH UNABSORBED DEPRECIATION WAS NOT CORRECTLY INTERPRETED. THEREFORE, WE CANNOT SAY THAT THERE W AS NO PLEADING IN THIS REGARD BEFORE THE CIT(APPEALS). IN ANY CASE, AS HELD BY HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF RAMNATH GO ENKA(DECD.) AND OTHERS (SUPRA) THAT THIS TRIBUNAL IS DUTY BOUND TO GRANT RELIEF TO THE ASSESSEE FOR WHICH IT IS ENTITLED TO, EVEN IF THERE WAS NO PLEA IN THIS REGARD. WE ARE, THEREFORE, OF THE OPINION THAT ASS ESSEES CLAIM FOR SET OFF OF THE INCOME RECEIVED ON SALE OF IMPORT LI CENCE AGAINST I.T.A. NO. 1991/MDS/07 7 UNABSORBED LOSS FOR IMPUGNED ASSESSMENT YEAR, HAS T O BE ALLOWED. ORDERED ACCORDINGLY. 11. GROUND NO.5 OF THE ASSESSEE READS AS UNDER:- 5. THE LEARNED CIT(A), HAS ERRED IN HOLDING, THAT T HE CLAIM FOR SET OFF OF UNABSORBED DEPRECIATION OF ASSESSMEN T YEAR 1995- 96 TO THE EXTENT OF ` 5,38,272/-, AS PER THE WORKING, AGAINST THE INTEREST INCOME, IS NOT TENABLE AND IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER, IN NOT SETTING OFF THE UNABS ORBED DEPRECIATION, IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, AS IN ORDER. 12. FACTS APROPOS ARE THAT ASSESSEE HAD, DURING THE RELEVANT PREVIOUS YEAR, RECEIVED INTEREST FROM INDIAN OVERSE AS BANK OF ` 12,52,428/- AND INTEREST ON INCOME-TAX REFUND OF ` 34,218/- TOTALLING TO ` 12,86,646/-. THOUGH ASSESSEE HAD CLAIMED SUCH INC OME AS PART OF ITS BUSINESS INCOME, ASSESSING OFFICER WAS OF TH E OPINION THAT THESE COULD BE ASSESSED ONLY UNDER THE HEAD INCOME FROM OTHER SOURCES. AS PER THE A.O., SUCH INTEREST RECEIPTS HAD NO DIRECT NEXUS WITH THE EXPORT BUSINESS OF THE ASSESSEE. THOUGH T HE ASSESSEE CLAIMED THAT SUCH INCOME HAD TO BE SET OFF AGAINST UNABSORBED DEPRECIATION BROUGHT FORWARD FROM EARLIER YEARS, TH IS WAS NOT ALLOWED BY THE A.O. ACCORDING TO HIM, BROUGHT FORWARD UNAB SORBED DEPRECIATION OF EARLIER YEAR COULD BE SET OFF AGAIN ST PROFITS OF THE I.T.A. NO. 1991/MDS/07 8 BUSINESS CARRIED ON BY THE ASSESSEE ONLY AND NOT AG AINST INCOME UNDER ANY OTHER HEAD. 13. IN ITS APPEAL BEFORE CIT(APPEALS), ARGUMENT OF THE ASSESSEE WAS THAT IT HAD UNABSORBED DEPRECIATION OF ASSESSME NT YEAR 1995-96 AVAILABLE FOR SET-OFF AND THEREFORE, ASSESSING OFFI CER OUGHT HAVE ADJUSTED SUCH UNABSORBED DEPRECIATION AGAINST THE I NTEREST INCOME. HOWEVER, LD. CIT(APPEALS) WAS NOT IMPRESSED. HE UP HELD THE VIEW TAKEN BY THE A.O. THAT UNABSORBED DEPRECIATION OF E ARLIER YEARS COULD BE SET OFF ONLY AGAINST PROFITS AND GAINS OF THE BU SINESS CARRIED ON BY THE ASSESSEE, IN THE SUCCEEDING YEAR. 14. NOW BEFORE US, LEARNED A.R., STRONGLY ASSAILING THE ORDERS OF AUTHORITIES BELOW, SUBMITTED THAT UNABSORBED DEPREC IATION ADMITTEDLY PERTAINED TO A YEAR PRIOR TO ASSESSMENT YEAR 1997- 98. ACCORDING TO HIM, PRIOR TO SUBSTITUTION OF SUB-SECTION (2) OF SE CTION 32 BY FINANCE ACT, 2001 WITH EFFECT FROM 1.4.2002, UNABSORBED DEP RECIATION, WHICH COULD NOT BE SET OFF AGAINST ANY OTHER HEAD, COULD BE CARRIED FORWARD AND SET OFF AGAINST ANY INCOME. THE RESTRICTION TH AT UNABSORBED DEPRECIATION COULD BE SET OFF ONLY AGAINST INCOME F ROM BUSINESS CAME IN THE STATUTE ONLY WITH EFFECT FROM 1.4.2002 AND T HEREFORE, ACCORDING TO HIM, SUCH A CLAIM FOR SET OFF WAS UNJUSTLY DENIE D TO THE ASSESSEE. I.T.A. NO. 1991/MDS/07 9 15. PER CONTRA, LEARNED D.R. SUBMITTED THAT THE VIE W PROPOGATED BY LEARNED A.R. WAS AGAINST THE DECISION OF SPECIAL BE NCH OF THIS TRIBUNAL IN THE CASE OF DCIT V. TIMES GUARANTEE LTD . [4 ITR (TRIB.) 210]. ACCORDING TO HIM, UNABSORBED DEPRECIATION CO ULD ONLY BE SET OFF AGAINST BUSINESS INCOME. 16. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. LD. CIT(APPEALS) HAS NOTED THAT DEPRECIATION CARRIE D FORWARD BY THE ASSESSEE PERTAINED TO ASSESSMENT YEAR 1995-96 AND T HIS HAS NOT BEEN REBUTTED BY THE LEARNED D.R. IN FACT, PARA 4 OF THE ASSESSMENT ORDER CLEARLY MENTIONS THAT ASSESSEE HAD UNABSORBED DEPRECIATION OF AT LEAST ` 5,38,272/- RELATING TO ASSESSMENT YEAR 1995-96. T HE POSITION REGARDING THE CLAIM FOR SET OFF OF UNABSOR BED DEPRECIATION AGAINST INCOME UNDER A HEAD OTHER THAN INCOME FROM BUSINESS WAS AN ISSUE WHICH CAME UP BEFORE HON'BLE JURISDICTIONA L HIGH COURT IN THE CASE OF CIT V. S&S POWER SWITCHGEAR LTD. (318 I TR 187). IT HAS BEEN CLEARLY HELD BY THEIR LORDSHIP AT PARA 5 OF TH EIR ORDER AS UNDER:- 5. AS PER THE AMENDED PROVISIONS OF S. 32(2) OF THE ACT, W.E.F. 1ST APRIL, 1997, IF THE INCOMEFROM BUSINESS FOR THE AS SESSMENT YEAR IS INSUFFICIENT TO ABSORB THE DEPRECIATION ALLOWANCE OFTHAT ASSESSMENT YEAR, THE AMENDED PROVISION PERMITS ABSORPTION OF DEPRECIATION ALLOWANCE OF ABUSINESS AGAINST PROFITS AND GAINS O F ANY OTHER BUSINESS OF THE SAME ASSESSMENT YEAR. WHENTHE DEPRECIATION ALLOWANCE OF A I.T.A. NO. 1991/MDS/07 10 BUSINESS OF THE ASSESSMENT YEAR IS NOT ABSORBED BY ANY OTHER BUSINESS OF THE SAME ASSESSMENT YEAR, THEN THE REM AINING UNABSORBED DEPRECIATION ALLOWANCECOULD BE SET OFF AGAINST THE INCOME UNDER ANY OTHER HEAD, THAT IS ASSESSABLE FOR THE SAMEASSESSM ENT YEAR. IN THE EVENT OF DEPRECIATION ALLOWANCE OF THE YEAR IS UNA BLE TO BE ABSORBED BYANY OTHER BUSINESS INCOME OR FROM INCOME UNDER A NY OTHER HEAD IN THE SAME ASSESSMENT YEAR,THE REMAINING UNABSORBED DEPRECIATION ALLOWANCE SHALL BE CARRIED FORWARD TO THE FOLLOWIN G YEARAND (A) UNABSORBED ALLOWANCE SHALL BE SET OFF AGAINST THE PROFITS AND GAINS OF ANY BUSINESSCARRIED BY A PERSON. (B) IF THE UNABSO RBED DEPRECIATION ALLOWANCE CANNOT BE WHOLLY SET OFF SO, ITSHALL BE ALLOWED TO BE CARRIED FORWARD FOR THE FOLLOWING EIGHT ASSESSMENT YEARS I MMEDIATELY SUCCEEDING THE ASSESSMENT YEAR IN WHICH IT WAS FIR ST COMPUTED. THE PROVISO PROVIDES THAT THEBUSINESS TO WHICH DEPRECI ATION ALLOWANCE IS RELATED TO MUST BE CARRIED ON IN THE SUCCEEDING YE ARSO AS TO ALLOW SUCH SET OFF. THUS, BY THE AMENDMENT, THE DEEMING FICTION OF TREATING THE EARLIERYEARS UNABSORBED DEPRECIATION AS CURRE NT YEAR DEPRECIATION WAS REMOVED. THE PERIOD AVAILABLEFOR ABSORBING THE UNABSORBED DEPRECIATION AGAINST THE PROFIT OF THE SUCCEEDING YEARS WASLIMITED TO EIGHT YEARS. THE CLARIFICATION OF TH E FINANCE MINISTER IN THE PARLIAMENT IS ALSO TO THEEFFECT THAT INASMUCH AS THE CUMULATED UNABSORBED DEPRECIATION BROUGHT FORWARD AS ON 1ST APRIL,1997 COULD STILL BE SET OFF AGAINST THE TAXABLE BUSINESS PROF IT OR INCOME UNDER ANY OTHER HEADFOR THE ASST. YR. 1997-98 AND SEVEN SUBSEQUENT YEARS VIDE (1996) 222 ITR (ST) 36. CIRCULAR OFTHE CBDT N O. 762, DT. 18TH FEB., 1998 [(1998) 145 CTR (ST) 5 : (1998) 230 ITR (ST) 12] ALSO CLARIFIES THE ISSUE TO THE FOLLOWING EFFECT : 'SUB-S. (2) OF S. 32, AS IT EXISTED UPTO ASST. YR. 1996-97, PROVIDED THAT THE UNABSORBEDDEPRECIATION OF A YEAR SHALL BE ADDE D TO THE AMOUNT OF THE ALLOWANCE FOR DEPRECIATION OF THEFOLLOWING PRE VIOUS YEAR AND DEEMED TO BE PART OF THAT ALLOWANCE. THEREFORE, TH E UNABSORBED DEPRECIATION ALLOWANCE, IF ANY, OF THE ASST. YR. 1 996-97 SHALL BE ADDED TO THE AMOUNT OF THEALLOWANCE FOR DEPRECIATION OF ASST. YR. 1997-98 AND DEEMED TO BE PART OF THE ALLOWANCE FOR THISYEA R. IN OTHER WORDS, THE UNABSORBED DEPRECIATION ALLOWANCE OF ASST. YR. 1996-97 SHALL BE ADDED TO THE ALLOWANCE OF 1997-98 AND WILL BE DEEM ED TO BE THE ALLOWANCE OF THAT YEAR. THELIMITATION OF EIGHT YEA RS SHALL START FROM THE ASST. YR. 1997-98.' I.T.A. NO. 1991/MDS/07 11 IN VIEW OF THE ABOVE TAKEN BY THE HON'BLE JURISDICT IONAL HIGH COURT, EVEN IF THE DECISION OF SPECIAL BENCH IN TIMES GUAR ANTEE LTD.S CASE (SUPRA) IS IN REVENUES FAVOUR, IT WILL HAVE NO CON SEQUENCE. NEVERTHELESS, WE MAY ALSO NOTE THAT THE SPECIAL BEN CH ALSO HAS HELD IN FAVOUR OF THE ASSESSEE WITH REGARD TO SCOPE OF S ET OFF OF BROUGHT FORWARD UNABSORBED DEPRECIATION ALLOWANCE INSOFAR A S IT RELATED TO UNABSORBED DEPRECIATION ALLOWANCE OF ASSESSMENT YEA R 1996-97 AND EARLIER YEARS. WE ARE, THEREFORE, OF THE OPINION T HAT ASSESSEES CLAIM FOR SET OFF OF UNABSORBED DEPRECIATION OF ASSESSMEN T YEAR 1995-96 WAS TO BE ALLOWED. THIS CLAIM IS ALLOWED TO THE EX TENT OF SUCH UNABSORBED DEPRECIATION OF AVAILABLE. ORDERED ACCOR DINGLY. 17. TO SUMMARIZE THE RESULT, APPEAL FILED BY THE AS SESSEE IS PARTLY ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON THURSDAY, THE 20 TH OF DECEMBER, 2012, AT CHENNAI. SD/- SD/- (S.S. GODARA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 20 TH DECEMBER, 2012. KRI. COPY TO: APPELLANT/RESPONDENT/CIT(A)-I, COIMBATORE / CIT-II, COIMBATORE/D.R./GUARD FILE