Gelikeps Pvt.Ltd., Baroda V. The Dy.CIT.,Circle-1(1), Baroda

ITA 401/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9336 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 23-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 13-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K
• Assessee Lawyers: S N SOPARKAR
• Keywords: Depreciation; Principle of natural justice; Additional evidence; Cost of acquisition; Fair market value; Valuation report; Unabsorbed depreciation
• Section: 32; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.401/AHD/2012 ( / ASSESSMENT YEAR : 2008-09) GELIKEPS PVT.LTD. 501, PRANAVPURI TOWER NR.NATUBHAI CENTRE GOTRI ROAD BARODA-390 007 / VS. THE DCIT CIRCLE-1(1) BARODA ./ ./ PAN/GIR NO. : AAACG 8369 D ( ' / APPELLANT ) .. ( #' / RESPONDENT ) ' $ / APPELLANT BY : SHRI S.N. SOPARKAR, AR #' % $ / RESPONDENT BY : SHRI A.K. PANDEY, SR.DR &'( % ) / DATE OF HEARING 23/02/2016 *+, % ) / DATE OF PRONOUNCEMENT 29 /02/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-I, BARODA [CIT(A) IN SHORT] DATED 02.12.2011 PERTAINING TO ASSESSMENT YEAR (AY) 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ITA NO.401/AHD/ 2012 GELIKEPS PVT.LTD. VS. DCIT ASST.YEAR 2008-09 - 2 - 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED 2. THE APPELLANT CRAVES LEAVE TO AMEND, ALTER OR ADD T O THE ABOVE GROUNDS OF APPEAL. 1. LD. CIT (A) ERRED IN LAW AND ON FACTS IN CO NFIRMING ACTION OF AO IN ADOPTING FMV (FAIR MARKET VALUE) OF RS. 20/- PER SQ FT IN PLACE OF RS. 30/- ADOPTED BY THE APPELLANT AS ON 01/04/1981. LD. CIT (A) FURTHER ERRED IN NOT APPRECIATING THE FACT THAT AO OUGHT TO HAVE REFERRE D THE VALUATION TO DVO INSTEAD OF ESTIMATING FMV HIMSELF. LD. CIT (A) OUGH T TO HAVE ACCEPTED FMV ADOPTED BY THE APPELLANT BASED ON VALUATION REPORT AND COMPARABLE SALE INSTANCE INSTEAD OF CONFIRMING ALV TAKEN BY AO UNPR OFESSIONALLY. 2. LD. CIT (A) ERRED IN LAW AND ON FACTS IN NO T ADMITTING SALE INSTANCE AND VALUATION REPORT SUBMITTED BY THE APPELLANT AT APPE LLATE STAGE TREATING THE SAME AS ADDITIONAL EVIDENCE. LD. CIT (A) GROSSLY FA ILED TO APPRECIATE THE FACT THAT THE APPELLANT WAS CONSTRAINED TO PLACE THEM ON RECORD WHEN AO ESTIMATED FMV ON THE BASIS OF SALE INSTANCES NOT CO MPARABLE WITH THE PROPERTY OF THE APPELLANT. THIS ACTION OF ID. CIT ( A) IS IN CLEAR BREACH OF PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVE S TO BE QUASHED. 3. LD. CIT (A) ERRED IN LAW AND ON FACTS IN CO NFIRMING ACTION OF AO IN NOT GRANTING SET OFF OF CARRY FORWARD BUSINESS LOSS OF THE EARLIER YEARS AGAINST ASSESSED INCOME OF THE YEAR UNDER CONSIDERATION. B OTH THE LOWER AUTHORITIES FAILED TO APPRECIATE THE CLAIM OF THE APPELLANT THA T LOSSES SUFFERED IN EARLIER YEARS OUGHT TO BE ALLOWED FOR SET OFF AGAINST INCOM E ASSESSED FOR THE YEAR ON ACCOUNT OF SALE OF BUSINESS ASSET. LD. CIT (A) OUGH T TO HAVE GRANTED SUCH SET OFF OF CARRY FORWARD LOSSES. 4. LD. CIT (A) ERRED IN LAW AND ON FACTS IN PA RTLY CONFIRMING ACTION OF AO IN DISALLOWING SET OFF OF UNABSORBED DEPRECIATION A GAINST INCOME ASSESSED FOR THE YEAR UNDER CONSIDERATION. BOTH THE LOWER AUTHOR ITIES ERRED IN LAW AND ON FACTS IN NOT CONSIDERING VARIOUS EXPLANATIONS, SUBM ISSIONS AND EVIDENCES PLACED ON RECORD BY THE APPELLANT IN ITS PROPER PER SPECTIVE AND FURTHER ERRED IN NOT APPRECIATING COMMERCIAL VIEW POINT OF THE AP PELLANT. LD. CIT (A) OUGHT TO HAVE ALLOWED CLAIM OF SET OFF OF UNABSORBED DEPR ECIATION IN FULL. 5. LEVY OF INTEREST U/S 234A/234B/234C & 234D OF THE ACT IS NOT JUSTIFIED. ITA NO.401/AHD/ 2012 GELIKEPS PVT.LTD. VS. DCIT ASST.YEAR 2008-09 - 3 - 6. INITIATION OF PENALTY U/S 271 (L)(C) OF THE ACT IS NOT JUSTIFIED. 2. BRIEFLY STATED FACTS ARE THAT THE CASE ARE THAT THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 02/12/2011, THEREBY THE ASSESSING OFFICER (AO IN SHORT) COMPUTED THE LONG TERM CAPITA L GAIN (LTCG) OF RS.7,43,86,860/- AGAINST THE CLAIM OF ASSESSEE OF R S.6,67,55,289/-, WHILE ADOPTING A DIFFERENT COST OF ACQUISITION @ RS.20 PE R SQ.FT. AS ON 01/04/1981. THE ASSESSEE BEING AGGRIEVED BY THE AS SESSMENT ORDER, PREFERRED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE PARTLY ALLOWED THE APPE AL. THE LD.CIT(A) UPHELD THE ACTION OF THE AO FOR COMPUTING THE LTCG AT RS.7,43,86,680/- IN RESPECT OF CLAIM OF SET OFF OF BUSINESS LOSS AND UNABSORBED DEPRECIATION. THE LD.CIT(A) REJECTED TH E CLAIM FOR SETTING OFF OF THE BROUGHT FORWARD BUSINESS LOSS OF RS.3,63,88, 385/- AGAINST THE INCOME UNDER THE HEAD IN THE ASSESSMENT YEAR UNDER APPEAL. HOWEVER, IN RESPECT OF THE UNABSORBED DEPRECIATION, THE LD.CIT( A) GAVE DIRECTION TO AO FOR AYS 1990-91, 1991-92, 1993-94, 1995-96 & 199 6-97 COULD HAVE BEEN SET OFF UPTO AY 2004-05. IN RESPECT OF UNABS ORBED DEPRECIATION PERTAINING TO AYS 1997-98, 1993-94 & 1999-2000 BEIN G THE PERIOD HELD THAT THE DEPRECIATION COULD NOT BE ALLOWED. HOWEVE R, IN RESPECT OF THE ITA NO.401/AHD/ 2012 GELIKEPS PVT.LTD. VS. DCIT ASST.YEAR 2008-09 - 4 - UNABSORBED DEPRECIATION PERTAINING TO AY 2002-03 TO 2007-08, THE LD.CIT(A) ALLOWED THE SET OFF. IN RESPECT OF INITI ATION OF PENALTY PROCEEDINGS, THE LD.CIT(A) DISMISSED THE GROUND BEI NG PREMATURE. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), THE ASSESS EE IS FURTHER IN APPEAL BEFORE US. 3. GROUND NOS.1 & 2 ARE AGAINST THE ADOPTION OF FAI R MARKET VALUE (FMV) OF RS.20 PER SQ.FT IN PLACE OF RS.30/- ADOPT ED BY THE ASSESSEE AS ON 01/04/1981. THE LD.SR.COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT THE ACTION OF THE AO IN ADOPTING THE FMV IS NO T JUSTIFIED. THE AO HAS NOT CALLED FOR ANY REPORT FROM THE VALUATION OF FICER. MOREOVER, THE LD.CIT(A) ALSO DID NOT ALLOW THE ASSESSEE TO PLACE ON RECORD THE VALUATION REPORT. HE SUBMITTED THAT UNDER THESE FA CTS, THE ASSESSEE SHALL NOT GIVEN SUFFICIENT OPPORTUNITY AND THE AUTHORITIE S BELOW HAVE ADOPTED THE DIFFERENT COST OF ACQUISITION UNILATERALLY WITH OUT BEING SUPPORTED BY ANY EVIDENCE. 3.1. ON THE CONTRARY, THE LD.SR.DR SHRI A.K. PANDEY OPPOSED THE SUBMISSIONS OF THE LD.SR.COUNSEL FOR THE ASSESSEE AND SUBMITTED THAT THERE IS NO ILLEGALITY INTO THE ACTION OF THE AUTHORITIES BELOW. THE ASSESSEE HAD ITSELF HAD NOT GIVEN ANY JUSTIFICATION FOR ADOPTING THE VALUE AT RS.30/- PER SQ.FT. THE AO HAS ADOPTED THE VALUATION ON THE BAS IS OF SALE INSTANCES. ITA NO.401/AHD/ 2012 GELIKEPS PVT.LTD. VS. DCIT ASST.YEAR 2008-09 - 5 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE HAS PLACED VALUATION REPORT BY AN AUTH ORIZED VALUER WHO HAS ADOPTED THE VALUE AT RS.28.50 SQ.FT. FURTHER, THE VALUE ADOPTED BY THE AO IS AT RS.20/- PER SQ.FT. AFTER CONSIDERING THE RIVAL CONTENTIONS AND LOOKING TO THE PECULIARITY OF THE FACTS OF THE PRES ENT CASE, WE ARE OF THE CONSIDERED VIEW THAT THE VALUE AT RS.25/- PER SQ.FT . WOULD SUBSERVE THE INTEREST OF JUSTICE. ACCORDINGLY, WE HEREBY DIRECT THE AO TO ADOPT THE COST OF ACQUISITION @ RS.25/- PER SQ.FT. AND, ACCOR DINGLY, RECOMPUTE THE CAPITAL GAIN. THUS, GROUND RAISED BY THE ASSESSEE IS PARTLY ALLOWED. 5. GROUND NO.3 IS AGAINST CONFIRMING THE DISALLOWAN CE OF SET OFF OF CARRY FORWARD BUSINESS LOSS OF THE EARLIER YEARS AG AINST THE ASSESSED INCOME OF THE YEAR UNDER CONSIDERATION. THE LD.SR .COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE. THEREFORE, GROUND NO.3 OF ASSESSEES APPEAL IS REJE CTED AS SUCH. 6. GROUND NO.4 IS AGAINST PARTLY CONFIRMING THE ACT ION OF THE AO IN RESPECT OF UNABSORBED DEPRECIATION AGAINST INCOME A SSESSED FOR THE YEAR UNDER APPEAL. THE LD.SR.COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE AUTHORITIES BELOW ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE VARIOUS SUBMISSIONS AND EVIDENCES PLACED ON RECORD BY THE A SSESSEE IN ITS PROPER PERSPECTIVE AND FURTHER ERRED IN NOT APPRECIATING C OMMERCIAL VIEW POINT ITA NO.401/AHD/ 2012 GELIKEPS PVT.LTD. VS. DCIT ASST.YEAR 2008-09 - 6 - OF THE ASSESSEE. THE LD.SR.COUNSEL FOR THE ASSESSE E SUBMITTED THAT THE LD.CIT(A) OUGHT TO HAVE ALLOWED THE CLAIM OF UNABSO RBED DEPRECIATION IN FULL. FURTHER, HE SUBMITTED THAT THE ISSUE IS COV ERED IN FAVOUR OF ASSESSEE. 6.1. ON THE OTHER HAND, THE LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) HAS GIVEN DIRECTION IN RESPECT OF UNABSORBED DEPRECIATION AT PAGE NO.12 OF HIS ORDER, WHICH REA D AS UNDER:- (1) BROUGHT FORWARD DEPRECIATION FOR AND UPTO AY 1996- 97 (TERMED AS FIRST UNADJUSTED DEPRECIATION ALLOWANCE BY HONBLE (ITAT ), I.E. FOR AYS 1990- 91, 1991-92, 1993-94, 1995-96 & 1996-97 AS PER CHAR T ABOVE COULD HAVE BEEN SET OFF UPTO AY 2004-05 ONLY. THE SAME CANNOT BE SET OFF IN AY 2008-09. (2) UNABSORBED DEPRECIATION PERTAINING TO AYS 1997-98, 1993-94 & 1999- 2000 (TERMED AS SECOND UNABSORBED DEPRECIATION ALLO WANCE BY HONBLE ITAT) CANNOT BE SET OFF IN AY 2008-09, EIGHT YEAR P ERIOD HAVING EXPIRED. FOR AYS 2000-01 & 2001-02, THERE IS NO UNABSORBED D EPRECIATION ALLOWANCE IN APPELLANTS CASE. (3) UNABSORBED DEPRECIATION PERTAINING TO AYS 2002-03 T O 2007-08 (TERMED AS THIRD UNADJUSTED DEPRECIATION ALLOWANCE BY HON BLE ITAT) IS COVERED BY SUB-CLAUSE (III) & (IV) OF CLAUSE C IN F INDINGS OF HONBLE ITAT AS REPRODUCED ABOVE, I.E. IT IS TO BE SET OFF AGAIN ST INCOME UNDER ANY HEAD, LIKE CURRENT DEPRECIATION, IN PERPETUITY. AO IS AC CORDINGLY DIRECTED TO ALLOW SE OFF FOR THE SAME IN AY 2008-09 AFTER DUE V ERIFICATION OF CORRECTNESS OF FIGURES OF CHART IN PARA 3.2.1. OF T HIS ORDER. ITA NO.401/AHD/ 2012 GELIKEPS PVT.LTD. VS. DCIT ASST.YEAR 2008-09 - 7 - 7.1. THE ASSESSEE IS AGGRIEVED BY THE ABOVE DIRECTI ONS OF THE LD.CIT(A). THE CONTENTION OF THE LD.SR.COUNSEL FOR THE ASSESSE E IS THAT THE LD.CIT(A) OUGHT TO HAVE ALLOWED THE UNABSORBED DEPRECIATION I N FULL AS THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE JUR ISDICTIONAL HIGH COURT RENDERED IN THE CASE OF GENERAL MOTORS INDIA (P) LTD. VS. DCIT REPORTED AT (2013) 354 ITR 244 (GUJ.). THE HONB LE HIGH COURT OF GUJARAT, IN THE SAID CASE, CONSIDERING THE AMENDMEN T TO THE STATUTE AND THE CIRCULAR ISSUED BY THE CBDT, DECIDED THE ISSUE BY HOLDING AS UNDER:- 37. THE CBDT CIRCULAR CLARIFIES THE INTENT OF THE A MENDMENT THAT IT IS FOR ENABLING THE INDUSTRY TO CONSERVE SUFFICIENT FUNDS T O REPLACE PLANT AND MACHINERY AND ACCORDINGLY THE AMENDMENT DISPENSES WI TH THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DE PRECIATION. THE AMENDMENT IS APPLICABLE FROM ASSESSMENT YEAR 2002-03 AND SUBSEQUENT YEARS. THIS MEANS THAT ANY UNABSORBED DEPRECIATION A VAILABLE TO AN ASSESSEE ON 1ST DAY OF APRIL, 2002 (A.Y. 2002-03) WIL L BE DEALT WITH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(2) AS AMEND ED BY FINANCE ACT, 2001 AND NOT BY THE PROVISIONS OF SECTION 32(2) AS IT STOOD BEFORE THE SAID AMENDMENT. HAD THE INTENTION 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 PROVISION TO THAT EFFECT. HOWEVER, IT DOES NOT CONTAIN ANY SUCH PROVISION . HENCE KEEPING IN VIEW THE PURPOSE OF AMENDMENT OF SECTION 32(2) OF THE A CT, A PURPOSIVE AND HARMONIOUS INTERPRETATION HAS TO BE TAKEN. WHILE CON STRUING TAXING STATUTES, RULE OF STRICT INTERPRETATION HAS TO BE APP LIED, GIVING FAIR AND REASONABLE CONSTRUCTION TO THE LANGUAGE OF THE SECTION WITHOUT LEANING TO THE SIDE OF ASSESSEE OR THE REVENUE. BUT IF THE LEGI SLATURE FAILS TO EXPRESS CLEARLY AND THE ASSESSEE BECOMES ENTITLED FOR A BENE FIT WITHIN THE AMBIT OF THE SECTION BY THE CLEAR WORDS USED IN THE SECTION, T HE BENEFIT ACCRUING TO THE ASSESSEE CANNOT BE DENIED. HOWEVER, CIRCULAR NO.1 4 OF 2001 HAD CLARIFIED THAT UNDER SECTION 32(2), IN COMPUTING THE PROFITS AND GAINS OF BUSINESS OR PROFESSION FOR ANY PREVIOUS YEAR, DEDUCTION O F DEPRECIATION UNDER SECTION 32 SHALL BE MANDATORY. THEREFORE, THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE ACT, 2001 WOULD ALLOW T HE UNABSORBED DEPRECIATION ALLOWANCE AVAILABLE IN THE A.Y. 1997-98 , 1999-2000, 2000-01 AND 2001-02 TO BE CARRIED FORWARD TO THE SUCCEEDING Y EARS, AND IF ANY ITA NO.401/AHD/ 2012 GELIKEPS PVT.LTD. VS. DCIT ASST.YEAR 2008-09 - 8 - UNABSORBED DEPRECIATION OR PART THEREOF COULD NOT BE SE T OFF TILL THE A.Y. 2002-03 THEN IT WOULD BE CARRIED FORWARD TILL THE TI ME IT IS SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEARS. 38. THEREFORE, IT CAN BE SAID THAT, CURRENT DEPRECIA TION IS DEDUCTIBLE IN THE FIRST PLACE FROM THE INCOME OF THE BUSINESS TO WHICH IT RELATES. IF SUCH DEPRECIATION AMOUNT IS LARGER THAN THE AMOUNT OF THE PROFITS OF THAT BUSINESS, THEN SUCH EXCESS COMES FOR ABSORPTION FROM THE PROFITS AND GAINS FROM ANY OTHER BUSINESS OR BUSINESS, IF ANY, CAR RIED ON BY THE ASSESSEE. IF A BALANCE IS LEFT EVEN THEREAFTER, THA T BECOMES DEDUCTIBLE FROM OUT OF INCOME FROM ANY SOURCE UNDER ANY OF THE OT HER HEADS OF INCOME DURING THAT YEAR. IN CASE THERE IS A STILL B ALANCE LEFT OVER, IT IS TO BE TREATED AS UNABSORBED DEPRECIATION AND IT IS TAKE N TO THE NEXT SUCCEEDING YEAR. WHERE THERE IS CURRENT DEPRECIATION FOR SUCH SUCCEEDING YEAR THE UNABSORBED DEPRECIATION IS ADDED TO THE CURR ENT DEPRECIATION FOR SUCH SUCCEEDING YEAR AND IS DEEMED AS PART THEREOF. IF, HOWEVER, THERE IS NO CURRENT DEPRECIATION FOR SUCH SUCCEEDING YEAR, TH E UNABSORBED DEPRECIATION BECOMES THE DEPRECIATION ALLOWANCE FOR S UCH SUCCEEDING YEAR. WE ARE OF THE CONSIDERED OPINION THAT ANY UNAB SORBED 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 PART THEREOF, IT CAME TO BE G OVERNED BY THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE AC T, 2001 AND WERE AVAILABLE FOR CARRY FORWARD AND SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEARS, WITHOUT ANY LIMIT WHATSOEVER. 39. FOR THE AFORESAID REASONS, THIS WRIT PETITION SUCC EEDS AND IS ALLOWED. THE NOTICE ISSUED UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961, DATED 29.3.2011 ANNEXURE A AND THE ASSESSMENT ORDER DATED 27.12.2011 PASSED BY THE ASSESSING OFFICER ANNEXURE F RESPECTI VELY TO THE WRIT PETITION ARE QUASHED. RULE IS MADE ABSOLUTE. THE PAR TIES SHALL BEAR THEIR OWN COSTS. 7.2. THEREFORE, RESPECTFULLY FOLLOWING THE RATIO L AID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GENERAL M OTORS INDIA (P) LTD. VS. DCIT(SUPRA), WE HEREBY DIRECT THE AO TO ALLOW THE SET OFF OF UNABSORBED DEPRECIATION AGAINST INCOME ASSESSED FOR THE YEAR UNDER ITA NO.401/AHD/ 2012 GELIKEPS PVT.LTD. VS. DCIT ASST.YEAR 2008-09 - 9 - CONSIDERATION. THUS, GROUND NO.4 RAISED IN ASSES SEES APPEAL IS ALLOWED. 9. GROUND NO.5 IS AGAINST LEVY OF INTEREST U/S.234 A/234B/234C & 234D OF THE ACT WHICH IS CONSEQUENTIAL IN NATURE. 10. GROUND NO.6 IS AGAINST INITIATION OF PENALTY U/ S.271(1)(C) OF THE ACT WHICH IS PREMATURE. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED AS DISCUSSED HEREINABOVE. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 29 TH DAY OF FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 29/ 02 /2016 0)..& , '.&../ T.C. NAIR, SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-I, BARODA 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD