ACIT CEN CIR 29, MUMBAI V. CROSSWORD BOOK STORES P. LTD, MUMBAI

ITA 3219/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92637 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 26-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Assessee Lawyers: ARVIND SONDE
• Keywords: Depreciation; Unabsorbed depreciation

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . . , . , BEFORE SHRI I.P. BANSAL, JM AND RAJENDRA, AM ./ I.T.A. NO.3219/MUM/2013 ( / ASSESSMENT YEAR : 2009-10 THE ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -29. R.NO.411, 4 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 / VS. M/S. CROSSWORD BOOK STORES PVT. LTD., PLOT NO.C-30, G-BLOCK, OPP.SIDBI, BKC, BANDRA (EAST), MUMBAI 400 051. ./ ./ PAN/GIR NO. : AABCP 7596G ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI PREMANAND J RESPONDENT BY SHRI ARVIND SONDE ' #$ / DATE OF HEARING : 13/05/2015 ' #$ / DATE OF PRONOUNCEMENT : 13/05/2015 / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-40, MUMBAI DATED 25/2/2013 FO R ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: 1 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE CLAIM OF CARRY FORWARD OF UNABSORBED DEPRECIATION PERTAINING TO THE PERIOD A.Y. 1997-98 TO 2001-02 DU RING WHICH THE LIMITATION OF 8 YEARS WAS EXISTING ' 1 (A). 'THAT IN DOING SO, THE ID. CIT(A) ERRED I N RELYING ON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IGNORING THE ORDER OF TH E HON'BLE SPECIAL BENCH ITAT MUMBAI IN M/S. TIMES GUARANTY LTD. 131 TTJ 256 AND IN ABSENCE OF ANY DECISION OF THE JURISDICTIONAL HIGH COURT ON THE IS SUE.' 2 'THE APPELLANT CRAVES TO LEAVE TO ADD, TO AMEND A ND / OR TO ALTER ANY OF THE GROUNDS OF APPEAL, IF NEED BE.' ./ I.T.A. NO.3219/MUM/2013 ( / ASSESSMENT YEAR : 2009-10 2 3 'THE APPELLANT, THEREFORE, PRAYS THAT ON THE GROU NDS STATED ABOVE, THE ORDER OF THE LD. CIT(A)-40, MUMBAI, MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED'. 2. THE AO DID NOT ALLOW BENEFIT OF CARRY FORWARD UN ABSORBED DEPRECIATION PERTAINING TO A.Y 1997-98TO 2001-02 FO LLOWING SPECIAL BENCH DECISION OF ITAT IN THE CASE OF TIMES GUARANTY LTD . 131 TTJ 256. LD. CIT(A) HAS GRANTED SUCH BENEFIT ON THE BASIS OF HO NBLE GUJARAT HIGH COURT DECISION IN THE CASE OF GENERAL MOTORS INDIA PVT. L TD. VS. DCIT DATED 23/8/2012, WHEREIN THEIR LORDSHIPS HAVE HELD THAT P ROVISIONS OF SECTION 32(2) OF THE INCOME TAX ACT, 1961(THE ACT), AS AMEN DED IN FINANCE ACT,2001, WOULD ALLOW UNABSORBED DEPRECIATION ALLOWANCE AVAIL ABLE IN ASSESSMENT YEARS 1997-98, 1999-2000, 2000-01 AND 2001-02 TO BE CARRIED FORWARD TO THE SUCCEEDING YEARS AND IF ANY UNABSORBED DEPRECI ATION OR PART THEREOF COULD NOT BE SET OFF TILL THE ASSESSMENT YEAR 2002 -03, THEN IT WOULD BE CARRIED FORWARD TILL THE TIME IT IS SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEARS. 3. LD. DR RELIED UPON THE ORDER PASSED BY AO AND AL SO ON THE GROUNDS OF APPEAL. 4. ON THE OTHER HAND, LD. AR SUBMITTED THAT MUMBAI TRIBUNAL IS TAKING CONSISTENT VIEW AS PER DECISION OF HONBLE GUJARAT HIGH COURT EVEN AFTER CONSIDERING SPECIAL BENCH DECISION IN THE CASE OF TIMES GUARANTY LTD. (SUPRA). HE HAS PLACED BEFORE US DECISION OF MUMBA I ITAT IN THE CASE OF HINDUSTAN UNILEVER VS. ADDL. CIT, (2013) 22 ITR (TR IB) 737 (MUM) AND ALSO THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE C ASE OF GENERAL MOTORS INDIA PVT. LTD. VS. DCIT, 354 ITR 244 (GUJ). 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. AFTER HEARING BOTH THE PARTIES, R ESPECTFULLY FOLLOWING THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA PVT.LTD. VS. DCIT (SUPRA) WE HOLD THAT THERE IS NO ERROR IN THE RELIEF GRANTED BY LD. CIT(A). WE DECLINE TO INTERFERE. ./ I.T.A. NO.3219/MUM/2013 ( / ASSESSMENT YEAR : 2009-10 3 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/05/2015 ' + ,- 13/05/2015 ' SD/- SD/- (RAJENDRA) . . (I.P.BANSAL) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; , DATED 13/05/2015 !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 0# ( ) / THE CIT(A)- 4. 0# / CIT 5. 12 #34 , $ 34 , / DR, ITAT, MUMBAI 6. 5 / GUARD FILE. / BY ORDER, 1# # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . .VM , SR. PS