DCIT CC 41, MUMBAI V. JSL STRUCTURE LTD, MUMBAI

ITA 4086/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3379 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 20-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 04-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH HELIWAL SR
• Assessee Lawyers: ADITYA ASGAONKARAR
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 32; 147; 148

Judgement Text

, ' INCOME TAX APPELLATE TRIBUNAL,MUMBAI- J,BENCH , , BEFORE S/SHJOGINDER SINGH,JUDICIAL MEMBER & RAJENDRA,ACCOUNTANT MEMBER ./ITA/4086/MUM/2014 , / ASSESSMENT YEARS: 2008-09 DCIT-CENTRAL CIRCLE-41 ROOM NO.655, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 020. VS. M/S. JSL STRUCTURES LTD. 6 TH FLOOR, VALECHA CHAMBERS, NEW LINK ROAD, OSHIWARA, ANDHERI (W) MUMBAI-400 053. PAN:AAACP 2307 E. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI ASHISH HELIWAL SR.AR ASSESSEE BY: SHRI ADITYA ASGAONKAR-AR / DATE OF HEARING: 30.03.2016 / DATE OF PRONOUNCEMENT: 30.03.2016 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA A.M. - CHALLENGING THE ORDER,DTD.10/02/2014 OF THE CIT (A) -38,MUMBAI THE ASSESSING OFFICER(AO) HAS FILED THE PRESENT APPEAL.ASSESSEE-COMPANY FILED ITS RETURN OF INCOME ON 07/12/2009, DECLARING TOTAL INCOME AT RUPEES NIL.THE AO COMPLET ED THE ASSESSMENT,U/S.143(3) R.W.S.147 OF THE ACT,ON 27/12/2012, DETERMINING THE INCOME OF THE ASSESSEE AT RS.12,28,509/-. 2. EFFECTIVE GROUND OF APPEAL IS ABOUT CARRY FORWARD O F UNABSORBED DEPRECIATION.BRIEF FACTS OF THE CASE ARE THAT THE ORIGINAL ASSESSMENT U/S.143(3 )OF THE ACT WAS COMPLETED ON 07.12.2009 DETERMINING THE INCOME OF THE ASSESSEE AT RS.NIL,AF TER SETTING OFF OF BROUGHT FORWARD LOSSES OF EARLIER YEARS.SUBSEQUENTLY,THE ASSESSMENT WAS RE OPENED BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT AND THE ASSESSMENT U/S.143(3)R.W.S.1 47 WAS COMPLETED ON 27/12/2012, DETERMINING THE INCOME OF THE ASSESSEE SAME AS THE ORIGINAL ASSESSMENT I.E.AT RS NIL. HOWEVER,IN THE REOPENED ASSESSMENT UNABSORBED DEPRE CIATION PERTAINING TO AY.1997-98 TO AY.1999-2000, AMOUNTING TO RS. 1.17 CRORES WAS NOT ALLOWED TO BE CARRIED FORWARD.WHILE COMPLETING THE ASSESSMENT, THE AO HELD THAT DEPRECI ATION PERTAINING TO AY.1997-98 COULD NOT BE CARRIED FORWARD FOR MORE THAN 8 AY.S I.E.,IT CO ULD NOT BE CARRIED FORWARD BEYOND AY. 2007-08.THE AO RELIED UPON THE DECISION OF THE SPEC IAL BENCH DELIVERED IN THE CASE OF TIMES GUARANTEE LTD.(40SOT14).THE CLAIM OF THE ASSESSEE F OR CARRY-FORWARD OF UNABSORBED DEPRECIATION RS.1,17,14,644/- WAS REJECTED BY THE A O. 3. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM, THE ASSESSEE C ONTENDED THAT IT HAD INCURRED LOSSES IN THE EARLIER YEARS,THAT THOSE LOSSES CONSISTED OF BU SINESS LOSS AS WELL AS UNABSORBED DEPRECIATION,THAT AGAINST THE PROFIT EARNED BY THE ASSESSEE FOR THE AY.2008-09 AMOUNTING TO RS.2.53 CRORES,THAT PART OF THE CARRY FORWARD LOSS WAS SET OFF ,THAT AS PER THE PROVISIONS OF THE ACT THE BUSINESS LOSS WAS SET OFF FIRST BEFORE SETT ING OFF OF THE UNABSORBED DEPRECIATION, THAT THE TOTAL CARRY FORWARD OF BUSINESS LOSS WAS RS.5.8 2 CRORES, THAT THE UNABSORBED DEPRECIATION AMOUNTED TO RS.2.64 CRORES,THAT THE PROFIT OF TH E AY.2008-09 WAS ONLY SUFFICIENT TO SET OFF A 4086/M/14-JSL 2 PART OF THE BUSINESS LOSSES AND NOT THE DEPRECIATIO N, THAT AFTER SETTING OFF OF BUSINESS LOSS OF RS.2.53 CRORES THE BALANCE UNABSORBED LOSS (RS.3.2 8 CRORES) AND THE UNABSORBED DEPRECIATION (RS.2.64 CRORES)WAS CLAIMED FOR CARRY-FORWARD, THAT IN THE ORIGINAL ASSESSMENT ORDER CARRY FORWARD OF SUCH LOSS WAS NOT DENIED,FOLLOWING THE D ECISION OF TIMES GUARANTEE LTD. (SUPRA), THAT ASSESSEE BROUGHT INTO THE NOTICE THAT THE HON BLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA(P) LTD. HAD DECIDED THE ISSUE OF CARRY FORWARD OF DEPRECIATION IN FAVOUR OF THE ASSESSEE-COMPANY,THAT THE HONBLE COURT HAD HELD THAT UNABSORBED DEPRECIATION PERTAINING TO AY.997-98 COULD BE ALLOWED TO BE CARR IED FORWARD AND SET OFF AFTER A PERIOD OF 8 YEARS AND WITHOUT ANY TIME LIMIT.IN ACCORDANCE WITH SECTION 32(2) OF THE ACT, THE JUDGMENT HAD ALSO DEALT WITH THE CBDT CIRCULAR NO.14 OF 2001 , THAT THE UNABSORBED DEPRECIATION FOR THE PERIOD AY.1997-98 TILL AY.2006-07 BECAME DEPRE CIATION OF AY.2008-09 FOR THE PURPOSE OF ALLOWABILITY OF DEPRECIATION, THAT IT LOST ITS C HARACTER OF BEING UNABSORBED DEPRECIATION OF A PARTICULAR YEAR.THE ASSESSEE RELIED UPON THE CASES OF ARCH FINE CHEMICALS (P) LTD.(ITA / 2014-2415/MUM/2012,DT.9.10.13)AND ASSOCIATED CABLES PVT.LTD.(ITA/556/MUM/2012,DT.31. 10.13). AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE A ND THE ASSESSMENT ORDER THE FAA HELD THAT THE RESTRICTION OF 8 YRS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATION HAD BEEN DISPENSED WITH FROM AY.2002-03, THAT THE UNABSORBED DEPRECIATION FROM AY.1997-98 UPTO AY.2001-02 GOT CARRY FORWARD TO AY.2002-03 AND BECA ME PART THEREOF, THAT THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS (I ) PVT. LTD. (25TAXMANN.COM 364) HAD HELD THAT UNABSORBED DEPRECIATION HAD TO BE ALLOWED TO B E CARRY FORWARD. HE FURTHER MENTIONED THAT IN THE CASE OF ARCH FINE CHEMICALS LTD.(SUPRA) , THE TRIBUNAL HAD FOLLOWED THE JUDGMENT OF GENERAL MOTORS (I)PVT.LTD.(SUPRA).FOLLOWING THE DECISIONS OF THE ARCH FINE CHEMICALS LTD. AND ASSOCIATED CABLES PVT. LTD. ALLOWED THE APPEAL FILED BY THE ASSESSEE. 4. BEFORE US,THE DEPARTMENTAL REPRESENTATIVE(DR)SUPPOR TED THE ORDER OF THE AO.THE AUTHORISED REPRESENTATIVE(AR)REFERRED TO THE CASES OF GENERAL MOTORS(I)LTD.,BAJAJ HINDUSTAN LTD.(47TAXMANN.COM333) DT.17.4.14, AND SM ITH AND NEPHEW HEALTHCARE(P) LTD. (50 TAXMANN.COM420 DT.15.1.14). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE HONBLE GUJARAT HIGH COURT HAS DEALT WITH THE ISSUE AT LENGTH AS UNDER. 32.THE LAST QUESTION WHICH ARISES FOR CONSIDERATI ON IS THAT WHETHER THE UNABSORBED DEPRECIATION PERTAINING TO THE ASSESSMENT YEAR 1997-98 COULD BE ALLOWED TO BE CARRIED FORWARD AND SET OFF AFTER A PERIOD OF EIGHT YEARS OR IT WOULD BE GOVERNED BY SECTION 32 AS AMENDED BY THE FINANCE ACT, 2001 ? THE REASON GIVEN BY THE ASSESSING OFFICER UNDER SEC TION 147 IS THAT SECTION 32(2) OF THE ACT WAS AMENDED BY THE FINANCE (NO. 2) ACT OF 1996, WITH EF FECT FROM THE ASSESSMENT YEAR 1997-98 AND THE UNABSORBED DEPRECIATION FOR THE ASSESSMENT YEAR 199 7-98 COULD BE CARRIED FORWARD UP TO THE MAXIMUM PERIOD OF EIGHT YEARS FROM THE YEAR IN WHIC H IT WAS FIRST COMPUTED. ACCORDING TO THE ASSESSING OFFICER, EIGHT YEARS EXPIRED IN THE ASSES SMENT YEAR 2005-06 AND ONLY TILL THEN, THE ASSESSEE WAS ELIGIBLE TO CLAIM UNABSORBED DEPRECIAT ION OF THE ASSESSMENT YEAR 1997-98 FOR BEING CARRIED FORWARD AND SET OFF AGAINST THE INCOME FOR THE ASSESSMENT YEAR 2005-06. BUT THE ASSESSEE WAS NOT ENTITLED FOR UNABSORBED DEPRECIATION OF RS. 43,60,22,158 FOR THE ASSESSMENT YEAR 1997-98, WHICH WAS NOT ELIGIBLE FOR BEING CARRIED FORWARD AN D SET OFF AGAINST THE INCOME FOR THE ASSESSMENT YEAR 2006-07. 33. PRIOR TO THE FINANCE (NO. 2) ACT OF 1996 THE UN ABSORBED DEPRECIATION FOR ANY YEAR WAS ALLOWED TO BE CARRY FORWARD INDEFINITELY AND BY A DEEMING F ICTION BECAME ALLOWANCE OF THE IMMEDIATELY SUCCEEDING YEAR. THE FINANCE (NO. 2) ACT OF 1996 RE STRICTED THE CARRY FORWARD OF UNABSORBED DEPRECIATION AND SET-OFF TO A LIMIT OF EIGHT YEARS, FROM THE ASSESSMENT YEAR 1997-98. CIRCULAR NO. 762, DATED FEBRUARY 18, 1998 (SEE [1998] 230 ITR (S T.) 12 ), ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) IN THE FORM OF EXPLANATORY NOTES CATEG ORICALLY PROVIDED, THAT THE UNABSORBED DEPRECIATION ALLOWANCE FOR ANY PREVIOUS YEAR TO WHI CH FULL EFFECT CANNOT BE GIVEN IN THAT PREVIOUS 4086/M/14-JSL 3 YEAR SHALL BE CARRIED FORWARD AND ADDED TO THE DEPR ECIATION ALLOWANCE OF THE NEXT YEAR AND BE DEEMED TO BE PART THEREOF. 34. SO, THE UNABSORBED DEPRECIATION ALLOWANCE OF TH E ASSESSMENT YEAR 1996-97 WOULD BE ADDED TO THE ALLOWANCE OF THE ASSESSMENT YEAR 1997-98AND THE LIMITATION OF EIGHT YEARS FOR THE CARRY FORWARD AND SET OFF OF SUCH UNABSORBED DEPRECIATION WOULD S TART FROM THE ASSESSMENT YEAR 1997-98. 35. WE MAY NOW EXAMINE THE PROVISIONS OF SECTION 32 (2) OF THE ACT BEFORE ITS AMENDMENT BY THE FINANCE ACT, 2001. THE SECTION, PRIOR TO ITS AMENDM ENT BY THE FINANCE ACT, 2001, READ AS UNDER : XXXXXXXXXXXXXX 36. THE AFORESAID PROVISION WAS INTRODUCED BY THE F INANCE (NO.2) ACT, 1996, AND FURTHER AMENDED BY THE FINANCE ACT, 2000. THE PROVISION INTRODUCED BY THE FINANCE (NO. 2) ACT WAS CLARIFIED BY THE FINANCE MINISTER TO BE APPLICABLE WITH PROSPECTIVE EFFECT. 37. SECTION 32(2) OF THE ACT WAS AMENDED BY THE FIN ANCE ACT, 2001, AND THE PROVISION SO AMENDED READS AS UNDER : 'WHERE, IN THE ASSESSMENT OF THE ASSESSEE, FULL EFF ECT CANNOT BE GIVEN TO ANY ALLOWANCE UNDER SUB- SECTION (1) IN ANY PREVIOUS YEAR, OWING TO THERE BE ING NO PROFITS OR GAINS CHARGEABLE FOR THAT PREVIOUS YEAR, OR OWING TO THE PROFITS OR GAINS CHA RGEABLE BEING LESS THAN THE ALLOWANCE, THEN, SUBJECT TO THE PROVISIONS OF SUB-SECTION (2) OF SEC TION 72 AND SUB-SECTION (3) OF SECTION 73, THE ALLOWANCE OR THE PART OF THE ALLOWANCE TO WHICH EFF ECT HAS NOT BEEN GIVEN, AS THE CASE MAY BE, SHALL BE ADDED TO THE AMOUNT OF THE ALLOWANCE FOR DEPRECI ATION FOR THE FOLLOWING PREVIOUS YEAR AND DEEMED TO BE PART OF THAT ALLOWANCE, OR IF THERE IS NO SUCH ALLOWANCE FOR THAT PREVIOUS YEAR, BE DEEMED TO BE THE ALLOWANCE OF THAT PREVIOUS YEAR, A ND SO ON FOR THE SUCCEEDING PREVIOUS YEARS.' 38. THE PURPOSE OF THIS AMENDMENT HAS BEEN CLARIFIE D BY THE CENTRAL BOARD OF DIRECT TAXES IN CIRCULAR NO. 14 OF 2001 (SEE [2001] 252 ITR (ST.) 6 5, 90). THE RELEVANT PORTION OF THE SAID CIRCULAR READS AS UNDER : 'MODIFICATION OF PROVISIONS RELATING TO DEPRECIATIO N 30.1 UNDER THE EXISTING PROVISIONS OF SECTION 32 OF THE INCOME-TAX ACT, CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATION IS ALLOWED FOR EIGHT ASSESS MENT YEARS. 30.2 WITH A VIEW TO ENABLE THE INDUSTRY TO CONSERVE SUFFICIENT FUNDS TO REPLACE PLANT AND MACHINERY, SPECIALLY IN AN ERA WHERE OBSOLESCENCE TAKES PLACE SO OFTEN, THE ACT HAS DISPENSED WITH THE RESTRICTION OF EIGHT YEARS FOR CARRY FORWARD AND SE T OFF OF UNABSORBED DEPRECIATION. THE ACT HAS ALSO CLARIFIED THAT IN COMPUTING THE PROFITS AND GA INS OF BUSINESS OR PROFESSION FOR ANY PREVIOUS YEAR, DEDUCTION OF DEPRECIATION UNDER SECTION 32 SH ALL BE MANDATORY. 30.3 UNDER THE EXISTING PROVISIONS, NO DEDUCTION FO R DEPRECIATION IS ALLOWED ON ANY MOTOR CAR MANUFACTURED OUTSIDE INDIA UNLESS IT IS USED (I) IN THE BUSINESS OF RUNNING IT ON HIRE FOR TOURISTS, O R (II) OUTSIDE IN THE ASSESSEE'S BUSINESS OR PROFESSI ON IN ANOTHER COUNTRY. 30.4 THE ACT HAS ALLOWED DEPRECIATION ALLOWANCE ON ALL IMPORTED MOTOR CARS ACQUIRED ON OR AFTER 1ST APRIL, 2001. 30.5 THESE AMENDMENTS WILL TAKE EFFECT FROM THE 1ST APRIL, 2002, AND WILL, ACCORDINGLY, APPLY IN RELATION TO THE ASSESSMENT YEAR 2002-03 AND SUBSEQU ENT YEARS.' 39.THE CENTRAL BOARD OF DIRECT TAXES CIRCULAR CLARI FIES 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 WITH THE RESTRICTION OF EIG HT YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATION. THE AMENDMENT IS APPLICABL E FROM THE ASSESSMENT YEAR 2002-03 AND SUBSEQUENT YEARS. THIS MEANS THAT ANY UNABSORBED DE PRECIATION AVAILABLE TO AN ASSESSEE ON THE 1ST DAY OF APRIL, 2002 (THE ASSESSMENT YEAR 2002-03), W ILL BE DEALT WITH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(2) AS AMENDED BY THE FINAN CE 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 THE ASSESSMENT YEAR 1997-98 ONLY FOR EIGHT SUBSEQUENT ASSESSMENT YEARS EVEN AFTER THE AM ENDMENT OF SECTION 32(2) BY THE FINANCE ACT, 2001, IT WOULD HAVE INCORPORATED A PROVISION TO THA T EFFECT. HOWEVER, IT DOES NOT CONTAIN ANY SUCH PROVISION. HENCE, KEEPING IN VIEW THE PURPOSE OF TH E AMENDMENT OF SECTION 32(2) OF THE ACT, A PURPOSIVE AND HARMONIOUS INTERPRETATION HAS TO BE T AKEN. WHILE CONSTRUING THE TAXING STATUTES, RULE OF STRICT INTERPRETATION HAS TO BE APPLIED, GIVING FAIR AND REASONABLE CONSTRUCTION TO THE LANGUAGE OF THE SECTION WITHOUT LEANING TO THE SIDE OF THE ASSE SSEE OR THE REVENUE. BUT IF THE LEGISLATURE FAILS T O EXPRESS CLEARLY AND THE ASSESSEE BECOMES ENTITLED F OR A BENEFIT WITHIN THE AMBIT OF THE SECTION BY THE CLEAR WORDS USED IN THE SECTION, THE BENEFIT ACCRUI NG TO THE ASSESSEE CANNOT BE DENIED. HOWEVER, CIRCULAR NO. 14 OF 2001 HAD CLARIFIED THAT UNDER SE CTION 32(2), IN COMPUTING THE PROFITS AND GAINS OF BUSINESS OR PROFESSION FOR ANY PREVIOUS YEAR, DE DUCTION OF DEPRECIATION UNDER SECTION 32 SHALL BE MANDATORY. THEREFORE, THE PROVISIONS OF SECTION 32( 2) AS AMENDED BY THE FINANCE ACT, 2001, WOULD ALLOW THE UNABSORBED DEPRECIATION ALLOWANCE AVAILAB LE IN THE ASSESSMENT YEARS 1997-98, 1999- 4086/M/14-JSL 4 2000, 2000-01 AND 2001-02 TO BE CARRIED FORWARD TO THE SUCCEEDING YEARS, AND IF ANY UNABSORBED DEPRECIATION OR PART THEREOF COULD NOT BE SET OFF T ILL 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. 40. THEREFORE, IT CAN BE SAID THAT, CURRENT DEPRECI ATION 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 COME S FOR ABSORPTION FROM THE PROFITS AND 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 INC OME FROM ANY SOURCE UNDER ANY OF THE OTHER HEADS OF INCOME DURING THAT YEAR. IN CASE THERE IS A STILL 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 THE UNABSORBE D DEPRECIATION IS ADDED TO THE CURRENT DEPRECIATION FOR SUCH SUCCEEDING YEAR AND IS DEEMED AS PART THEREOF. IF, HOWEVER, THERE IS NO CURRENT DEPRECIATION FOR SUCH SUCCEEDING YEAR, THE UNABSORBED DEPRECIATION BECOMES THE DEPRECIATION ALLOWANCE FOR SUCH SUCCEEDING YEAR. WE ARE OF THE CONSIDERED OPINION THAT ANY UNABSORBED DEPRECIATION AVAILABLE TO AN ASSESSEE ON THE 1ST DAY OF APRIL, 2002 (THE ASSESSMENT YEAR 2002-03), WILL BE DEALT WITH IN ACCORDANCE WIT H THE PROVISIONS OF SECTION 32(2) AS AMENDED BY THE FINANCE ACT, 2001. AND ONCE CIRCULAR NO. 14 OF 2001 CLARIFIED THAT THE RESTRICTION OF EIGHT YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECI ATION HAD BEEN DISPENSED WITH, THE UNABSORBED DEPRECIATION FROM THE ASSESSMENT YEAR 1997-98 UP TO THE ASSESSMENT YEAR 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 AMENDED BY THE FINAN CE ACT, 2001, AND WERE AVAILABLE FOR CARRY FORWARD AND SET OFF AGAINST THE PROFITS AND GAINS O F SUBSEQUENT YEARS, WITHOUT ANY LIMIT WHATSOEVER. VARIOUS BENCHES OF THE TRIBUNAL HAVE FOLLOWED THE A BOVE JUDGMENT AND HAVE HELD THAT UNABSORBED DEPRECIATION OF AY.1997-98 COULD BE ALLO WED TO BE CARRY FORWARD AND SET OFF AFTER A PERIOD OF 8 YEARS IN VIEW OF THE AMENDED SE CTION 32(2) OF THE ACT.RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS (I) PVT.LTD.,WE UPHOLD THE ORDER OF THE FAA.GROUND NO.1 -2 ARE DECIDED AGAINST THE AO. 5. LAST GROUND OF APPEAL IS ABOUT RE-OPENING OF THE AS SESSMENT U/S. 147 OF THE ACT.THE FAA HELD THAT REOPENING WAS BAD IN LAW.WE HAVE DECIDED THE ISSUE ON MERITS,SO WE ARE NOT ADJUDICATING THE JURISDICTIONAL ISSUE TREATING THE SAME INFRUCTUOUS. AS A RESULT APPEAL FILED BY THE AO STANDS DISMISSED. . ORDER PRONOUNCE D IN THE OPEN COURT ON 30 TH , MARCH, 2016. 30 , 2016 SD/- SD/- ( /JOGINDER SINGH) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 30.03.2016. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT/ 5. DR A BENCH, ITAT, MUMBAI / , J , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.