D.C.I.T. RG. 8(2), MUMBAI V. NELCO LTD., MUMBAI

ITA 5078/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2251 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MOHAMMED RIZWAN MR K K VED
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI BEFORE SHRI JOGINDER SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 5078/MUM/2012 ASSESSMENT YEAR: 2007 - 08 DCIT, RANGE 8(2) ROOM NO. 216 - A, AAYAKAR BHAVAN, MUMBAI - 400020 VS. NELCO LTD, FRANCYSTERS CYBERNETICS CENTRE, EUCHARISTIC CONGRESS BUILDING NO. III, 5, CONVENT STREET, COLABA, MUMBAI - 400001 PAN NO. AAACT1983C APPELLANT .. RESPONDENT DATE OF HEARING: 26/10/2016 DATE OF PRONOUNCEMENT: 26/10/2016 ORDER PER N. K. PRADHAN, A. M.: THIS IS AN APPEAL FILED BY THE REVENUE. THE RELEVANT ASSESSMENT YEAR IS 2007 - 08. IT IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 17, MUMBAI AND ARISES OUT OF THE ORDER U/S. 154 OF THE INCOME TAX ACT, 1961 (THE ACT). 2. IN SHORT, THE ISSUE IS WHETHER THE ASSESSEE IS ENTITLED TO CARRY FORWARD THE UNABSORBED DEPRECIATION FOR SET OFF IN FUTURE YEARS BEYOND THE PERIOD OF EIGHT YEARS. 3. THE LD. DR SUPPORTS THE ORDER OF THE ASSESSING OFFICER (AO). DEPARTMENT BY MR. MOHAMMED RIZWAN ASSESSEE BY MR. K.K.VED ITA 5078/MUM/2012 2 4. THE LD. COUNSEL OF THE ASSESSEE RE LIED ON THE ORDER OF THE ITAT B BENCH MUMBAI IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008 - 09 IN ITA NO. 2306/MUM/2012. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE ISSUE IN DISPUTE IS COVERED BY THE ORDER OF THE ITAT B BENCH MUMBAI IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008 - 09 IN ITA NO. 2306/MUM/2012 AND THE SAME READS AS UNDER: 2. IN SHORT, THE ISSUE IS THAT THE ASSESSEE IS ENTITLED TO CARRY FORWARD THE UNABSORB ED DEPRECIATION FOR SET OFF IN FUTURE YEARS BEYOND A PERIOD OF EIGHT YEARS, WHICH WAS NOT ACCEPTED BY THE AO AS WELL AS THE CIT(A). 3. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON FOLLOWING DECISIONS IN SUPPORT OF HIS CONTENTION THAT UNABSORBED DEPRECIATION PERTAINING TO A.Y. 1995 - 96 ONWARDS CAN BE CARRIED FORWARD, IN THE EVENT THAT THEY ARE NOT ABSORBED IN SUB SEQUENT YEARS, AND SET OFF CAN BE CLAIMED EVEN AFTER LAPSE OF EIGHT YEARS: I. GENERAL MOTORS INDIA (P) LTD VS. DCIT - 210 TAXMAN 20 (GUJ) II. HINDUSTAN UNILEVER LTD VS. ADDL. CIT - 22 ITR (AT) 737 (MUM) III. MULTONS PVT. LTD. VS. CIT ITA NO. 3019/MUM/2012 DATED 22.05.2013 4. THE LD. DR FAIRLY ADMITTED THAT THE ISSUE STANDS COVERED BY THE AFORECITED DECISIONS, THOUGH , HOWEVER, HE SUPPORTED THE STAND TAKEN BY THE REVENUE. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION AND PERUSED THE RECORD. IN THE LIGHT OF THE DECISION OF THE HONBLE GUJARAT HIGH COURT (SUPRA), WHICH IN TURN WAS FOLLOWED BY THE ITAT MUMBAI BENCHES, WE ARE OF THE CONSIDERED OPINION THAT THE PLEA RAISED B Y THE ASSESSEE DESERVES TO BE ACCEPTED AND WE ORDER ACCORDINGLY. 6. THE FACTS IN THE IMPUGNED ASSESSMENT YEAR BEING SAME AS IN THE ASSESSMENT YEAR 2008 - 09, WE FOLLOW THE ABOVE ORDER OF THE ITAT AND DISMISS THE APPEAL FILED BY THE REVENUE. ITA 5078/MUM/2012 3 THIS ORDER W AS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 26.10.2016. SD/ - SD/ - ( JOGINDER SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 2 6 /10/2016 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI