Assistant Commissioner of Income Tax, Central Circle-3, Jaipur V. M/s. Kanhaiyal Lal Rameshwar Dass, Kota

ITA 523/JPR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6866 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 15-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S R SHARMA; RAJNIKANT BHATRA CA DH RK
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 143(3); 153A; 32; 54; 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 523 & 524/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 & 2012-13 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, JAIPUR CUKE VS. M/S KANHAIYA LAL RAMESHWAR DAS, RISHABH BHAWAN, NEW COLONY, GUMANPURA, KOTA, RAJASTHAN. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABFK4323K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SMT. NEENA JEPH (JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. S. R. SHARMA & SH. RAJNIKANT BHATRA (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 18/07/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 29/07/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THESE ARE TWO APPEALS FILED BY THE REVENUE AGAINST THE CONSOLIDATED ORDER OF LD. CIT(A)-4, JAIPUR DATED 13 .02.2019 FOR THE ASSESSMENT YEAR 2011-12 & 2012-13. 2. IN ITA NO. 523/JP/2019, THE ASSESSEE HAS TAKEN F OLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE CIT(A) WAS RIGHT IN DELETING THE DISALLOWANCE O F RS. ITA NO. 523 & 524/JP/2019 ACIT, JAIPUR VS. MS KANHAIYA LAL RAMESHWAR DAS, KO TA 2 19,42,447/- MADE BY THE AO ON ACCOUNT OF UNABSORBED DEPRECIATION U/S 32(2) OF THE I.T. ACT, 1961. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN ALLOWING THE APPEAL OF THE ASSESSEE HOLDING THAT IN ABSENCE OF ANY INCRIMINATING MATERI AL, THE COMPLETED ASSESSMENT CANT BE INTERFERE WITH BY THE AO WHILE MAKING ASSESSMENT U/S 153A ONLY ON THE BASIS OF SOM E INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FIRM IS ENGAGED IN THE BUSINESS OF MINING AND DEALING IN SA ND STONE. THE ASSESSMENT U/S 153A READ WITH 143(3) WAS COMPLETED ON 16.12.2016 WHEREIN UNABSORBED DEPRECIATION BROUGHT FORWARD FRO M EARLIER YEARS WAS ALLOWED. THEREAFTER, THE AO ISSUED NOTICE U/S 1 54 ON THE GROUND THAT THE APPELLANT WAS ALLOWED SET OFF OF BROUGHT F ORWARD UNABSORBED DEPRECIATION OF RS. 19,42,447/- OF AY 2001-02 AND E ARLIER YEARS WHICH WAS IRREGULAR AS THE TIME LIMIT FOR SET OFF WITHIN 8 YEARS HAS LAPSED AS PER THE PROVISIONS OF SECTION 32(2)(III) OF THE ACT . IN RESPONSE, THE ASSESSEE FILED ITS EXPLANATION BEFORE AO AND RELIED UPON VARIOUS JUDICIAL PRECEDENTS. HOWEVER, THE SAME WERE NOT FOUND ACCEPT ABLE TO THE ASSESSING OFFICER AND BY ORDER U/S 154 HAS WITHDRAW N THE SET OFF OF UNABSORBED DEPRECIATION OF RS. 19,42,447/- AND ENHA NCED THE INCOME OF THE ASSESSEE TO THAT EXTENT. ON APPEAL, THE LD. CIT(A) HELD THAT UNABSORBED DEPRECIATION AS ON 01.04.2002 WILL BE AL LOWED TO BE SET OFF AND CARRIED FORWARD AS PER THE AMENDED PROVISION OF SECTION 32(2) OF THE ACT. IN SUPPORT, HE RELIED ON THE ORDER OF CIT VS RB POLYMERS 89 ITA NO. 523 & 524/JP/2019 ACIT, JAIPUR VS. MS KANHAIYA LAL RAMESHWAR DAS, KO TA 3 TAXMANN.COM 87. AGAINST THE SAID FINDINGS OF THE LD CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 4. DURING THE COURSE OF HEARING, THE LD. DR RELIED ON THE ORDER OF THE ASSESSING OFFICER. 5. PER CONTRA, THE LD. AR SUBMITTED THAT THE MATTER IS SQUARELY COVERED BY THE DECISION OF HONBLE GUJARAT HIGH COU RT IN CASE OF GENERAL MOTORS INDIA VS. DCIT (2013) 354 ITR 244 WH EREIN IT WAS HELD THAT THE UNABSORBED DEPRECIATION CAN BE CARRIED FOR WARD AND SET OFF IN THE SUBSEQUENT YEARS WITHOUT ANY TIME LIMIT. IT WAS FURTHER SUBMITTED THAT THE FOLLOWING THE SAID DECISION, THE HONBLE J URISDICTIONAL HIGH COURT IN CASE OF PR. CIT, ALWAR VS. M/S GINNI INTER NATIONAL LTD., ALWAR (IN DBIT APPEAL NO. 131 OF 2017 DATED 5.12.2017) HAS DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE AND SLP FILED BY THE DEPA RTMENT HAS SINCE BEEN DISMISSED BY THE HONBLE SUPREME COURT OF INDI A VIDE ITS ORDER DATED 13.07.2018. IT WAS FURTHER SUBMITTED THAT SIM ILAR VIEW HAS BEEN TAKEN BY THE COORDINATE BENCH IN CASE OF ACIT VS. E MGEE CABLES & COMMUNICATION LTD. (IN ITA NO. 357/JP/2014 VIDE ITS ORDER DATED 31.03.2017). IT WAS FURTHER SUBMITTED THAT THE LD CIT(A)- 4, JA IPUR IN HIS SUBSEQUENT DECISION IN ANOTHER CASE OF M/S KANHAIYA LAL RAMESHWAR DAS (APPEAL NO. 175 & 176/2017-18 DATED 30.01.2019) HAS SINCE DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE AND TH EREFORE, THE SAID DECISION ALSO SUPPORT THE CASE OF THE ASSESSEE COMP ANY. 6. IT WAS FURTHER SUBMITTED BY THE LD AR THAT IDENT ICAL ISSUES WAS INVOLVED IN CASE OF M/S K. R. MARBLES P. LTD., KOTA VS. DCIT, JAIPUR & OTHERS (ITA NO. 932 & 933/JP/2018 DATED 31.05.2019) WHEREIN THE BENCH HAS DECIDED THE IDENTICAL ISSUE I N FAVOUR OF THE ITA NO. 523 & 524/JP/2019 ACIT, JAIPUR VS. MS KANHAIYA LAL RAMESHWAR DAS, KO TA 4 ASSESSEE COMPANY. IN THIS REGARD, OUR REFERENCE WAS DRAWN TO PARA 7 AND 8 OF THE SAID ORDER WHICH READS AS UNDER:- 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. UNDISPUTEDLY, THE MATTER IS CO VERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE GUJARAT HIG H COURT AS WELL AS HONBLE RAJASTHAN HIGH COURT. THE CO-ORDINATE BENCH (SPEAKING THROUGH ONE OF US) HAD AN OCCASION TO EXAMINE THE S IMILAR MATTER IN CASE OF ACIT VS. EMGEE CABLES & COMMUNICATION LTD. (SUPRA) WHEREIN IT WAS HELD AS UNDER:- 3. IN ITS SOLITARY GROUND OF APPEAL, THE REVENUE H AS CHALLENGED THE ACTION OF LD. CIT(A) IN DIRECTING TO ALLOW SET OFF OF UNABSORBED DEPRECIATION PERTAINING TO A.Y. 2000-200 1 AND A.Y 2001-02 FROM INCOME UNDER THE HEAD INCOME FROM OTH ER SOURCES PERTAINING TO THE YEAR UNDER CONSIDERATION IN VIEW OF THE AMENDMENT EFFECTED BY THE FINANCE ACT 2001 WHICH HA S BEEN STATED TO BE APPLICABLE FROM A.Y. 2002-03 ONLY. 3.1 IT IS NOTED THAT THE PROVISION OF SECTION 32(2) OF THE ACT WHICH DEALS WITH THE SET OFF OF UNABSORBED DEPRECIA TION HAS BEEN SUBJECT TO SEVERAL AMENDMENTS IN THE PAST AND THE L ATEST AMENDMENT WHICH IS IN CONSIDERATION HAS BEEN BROUGH T IN BY THE FINANCE ACT 2001. IN THE INSTANT CASE, THE QUESTIO N THAT ARISES FOR CONSIDERATION IS HOW SHOULD THE PROVISION OF SE CTION 32(2) SHOULD BE APPLIED REGARDING SET OFF OF UNABSORBED D EPRECIATION PERTAINING TO A.Y 2000-01 AND AY 2001-2002 WHEN THE PRE- AMENDED LAW WAS APPLICABLE AND WHICH HAS NOW BEEN C LAIMED TO BE SET OFF AT THE POINT OF TIME I.E. IN A.Y 2009-10 WHEN POST AMENDMENT LAW WAS APPLICABLE. THE ASSESSING OFFICE R HAS RELIED ITA NO. 523 & 524/JP/2019 ACIT, JAIPUR VS. MS KANHAIYA LAL RAMESHWAR DAS, KO TA 5 ON THE DECISION OF SPECIAL BENCH OF ITAT IN CASE OF DCIT VS. TIMES GUARANTY LTD FOR 4 ITR (TRIB) 210 WHEREIN THE SPECIAL BENCH HAS HELD AS UNDER:- AMOUNT OF CURRENT DEPRECIATION FOR ASST. YRS. 199 7-98 TO 2001-02 WHICH CANNOT BE SO SET OFF AS PER (II) ABOV E SHALL BE CARRIED FORWARD FOR A MAXIMUM PERIOD OF EIGHT ASSES SMENT YEARS FROM THE ASSESSMENT YEAR IMMEDIATELY SUCCEEDING THE ASSESSMENT YEAR FOR WHICH IT WAS FIRST COMPUTED, TO BE SET OFF ONLY AGAINST THE INCOME UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. 3.2 SUBSEQUENTLY, THE MATTER CAME UP FOR CONSIDERAT ION BEFORE THE HONBLE GUJARAT HIGH COURT IN CASE OF GENERAL M OTORS INDIA PVT. LTD. 354 ITR 244 WHEREIN THE QUESTION FOR CONS IDERATION BEFORE THE HONBLE HIGH COURT WAS WHETHER UNABSORB ED DEPRECIATION PERTAINING TO THE A.Y 1997-98 COULD BE ALLOWED TO BE CARRIED FORWARD AND SET OFF AFTER A PERIOD OF 8 YEA RS OR WOULD IT BE GOVERNED BY THE PROVISIONS OF SECTION 32(2) AS AMEN DED BY THE FINANCE ACT 2001. THE RELEVANT FINDING OF THE HON BLE HIGH COURT OF GUJARAT ARE CONTAINED AT PARA 35 TO 38 OF ITS OR DER WHICH READS AS UNDER:- 35. SECTION 32 (2) OF THE ACT WAS AMENDED BY FINA NCE 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 BEING NO PROFITS OR GAINS CHARGEABLE FOR THAT PREVIOUS YEAR, OR OWING TO THE PROFITS OR GAINS CHARGEABLE FOR THAT PREVIOUS YEAR, OWING TO T HE PROFITS OR GAINS CHARGEABLE BEING LESS THAN THE ALL OWANCE, THEN, SUBJECT TO THE PROVISIONS OF SUB-SECTION (2) OF SECTION 72 AND SUB-SECTION (3) OF SECTION 73, THE ALLOWANCE OR THE PART OF THE ALLOWANCE TO WHICH EFFECT HAS NOT BEEN GIVEN, AS THE CASE MAY BE, SHALL BE ADDED TO THE AMOUNT OF THE ITA NO. 523 & 524/JP/2019 ACIT, JAIPUR VS. MS KANHAIYA LAL RAMESHWAR DAS, KO TA 6 ALLOWANCE FOR DEPRECIATION FOR THE FOLLOWING PREVIO US YEAR AND DEEMED TO BE PART OF THAT ALLOWANCE, OR IF THER E IS NO SUCH ALLOWANCE FOR THAT PREVIOUS YEAR, BE DEEMED TO BE ALLOWANCE OF THAT PREVIOUS YEAR, AND SO ON FOR THE SUCCEEDING PREVIOUS YEARS. 36. THE PURPOSE OF THIS AMENDMENT HAS BEEN CLARIFIE D BY CENTRAL BOARD OF DIRECT TAXES IN THE CIRCULAR NO. 1 4 OF 2001. THE RELEVANT PORTION OF THE SAID CIRCULAR RE ADS 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 8 YEARS. 30.2 WITH A VIEW TO ENABLE THE INDUSTRY TO CONSERV E SUFFICIENT FUNDS TO REPLACE PLANT AND MACHINERY, SPECIALLY IN AN ERA WHERE OBSOLESCENCE TAKES PLACE SO OFTEN, THE ACT HA S DISPENSED WITH THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATION. THE ACT HA S ALSO CLARIFIED THAT IN COMPUTING THE PROFITS AND GAINS O F BUSINESS OR PROFESSION FOR ANY PREVIOUS YEAR, DEDUCTION OF DEPRECIATION U/S 32 SHALL BE MANDATORY. 30.3 UNDER THE EXISTING PROVISIONS, NO DEDUCTION FO R DEPRECIATION IS ALLOWED ON ANY MOTOR CAR MANUFACTURED OUTSIDE IN DIA UNLESS IT IS USED (I) IN THE BUSINESS OF RUNNING IT ON HIRE FOR TOURISTS, OR (II) OUTSIDE IN THE ASSESSEES BUSINES S OR PROFESSION IN ANOTHER COUNTRY. 30.4 THE ACT HAS ALLOWED DEPRECIATION ALLOWANCE ON ALL IMPORTED MOTOR CARS ACQUIRED ON OR AFTER 1 ST APRIL, 2001. 30.5 THESE AMENDMENTS WILL TAKE EFFECT FROM THE 1 ST APRIL, 2002, AND WILL, ACCORDINGLY, APPLY IN RELATION TO THE ASS ESSMENT YEAR 2002-03 AND SUBSEQUENT YEARS. 37. THE CBDT CIRCULAR CLARIFIES THE INTENT OF THE A MENDMENT THAT IT IS FOR ENABLING THE INDUSTRY TO CONSERVE SU FFICIENT FUNDS TO REPLACE PLANT AND MACHINERY AND ACCORDINGL Y THE AMENDMENT DISPENSES WITH THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATIO N. THE ITA NO. 523 & 524/JP/2019 ACIT, JAIPUR VS. MS KANHAIYA LAL RAMESHWAR DAS, KO TA 7 AMENDMENT IS APPLICABLE FROM ASSESSMENT YEAR 2002-0 3 AND SUBSEQUENT YEARS. THIS MEANS THAT ANY UNABSORB ED DEPRECIATION AVAILABLE TO AN ASSESSEE ON 1 ST DAY OF APRIL, 2002 (A.Y. 2002-03) WILL BE DEALT WITH IN ACCORDANC E WITH THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINAN CE ACT, 2001 AND NOT BY THE PROVISIONS OF SECTION 32(2) AS IT STOOD BEFORE THE SAID AMENDMENT. HAD THE INTENTION OF TH E LEGISLATURE BEEN TO ALLOW THE UNABSORBED DEPRECIATI ON ALLOWANCE WORKED OUT IN A.Y. 1997-98 ONLY FOR EIGHT SUBSEQUENT ASSESSMENT YEARS EVEN AFTER THE AMENDMEN T OF SECTION 32(2) OF THE ACT, A PURPOSIVE AND HARMONIOU S INTERPRETATION HAS TO BE TAKEN. WHILE CONSTRUING T AXING STATUTES, RULE OF STRICT INTERPRETATION HAS TO BE A PPLIED, GIVING FAIR AND REASONABLE CONSTRUCTION TO THE LANG UAGE OF THE SECTION WITHOUT LEANING TO THE SIDE OF ASSESSEE OR THE REVENUE. BUT IF THE LEGISLATURE FAILS TO EXPRESS C LEARLY AND THE ASSESSEE BECOMES ENTITLED FOR A BENEFIT WITHIN THE AMBIT OF THE SECTION BY THE CLEAR WORDS USED IN THE SECTION, THE BENEFIT ACCRUING TO THE ASSESSEE CANNOT BE DENI ED. HOWEVER, CIRCULAR NO. 14 OF 2001 HAD CLARIFIED THAT UNDER SECTION 32(2), IN COMPUTING THE PROFITS AND GAINS O F BUSINESS OR PROFESSION FOR ANY PREVIOUS YEAR, DEDUC TION OF DEPRECIATION U/S 32 SHALL BE MANDATORY. THEREFORE, THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE A CT, 2001 WOULD ALLOW THE UNABSORBED DEPRECIATION ALLOWA NCE AVAILABLE IN THE A.Y. 1997-98, 1999-2000, 2000-01 A ND 2001-02 TO BE CARRIED FORWARD TO THE SUCCEEDING YEA RS, AND IF ANY UNABSORBED DEPRECIATION OR PART THEREOF COUL D NOT BE SET OFF TILL THE A.Y. 2002-03 THEN IT WOULD BE CARR IED FORWARD TILL THE TIME IT IS SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEARS. 38. THEREFORE, IT CAN BE SAID THAT, CURRENT DEPRECI ATION IS DEDUCTIBLE IN THE FIRST PLACE FROM THE INCOME OF TH E BUSINESS TO WHICH IT RELATES. IF SUCH DEPRECIATION AMOUNT IS LARGER THAN THE AMOUNT OF THE PROFITS OF THAT BUSIN ESS, THEN SUCH EXCESS COMES FOR ABSORPTION FROM THE PROFITS A ND GAINS FROM ANY OTHER BUSINESS OR BUSINESS, IF ANY, CARRIED ON BY THE ASSESSEE. IF A BALANCE IS LEFT EVEN THER EAFTER, THAT BECOMES DEDUCTIBLE FROM OUT OF INCOME FROM ANY SOURCE UNDER ANY OF THE OTHER HEADS OF INCOME DURIN G THE YEAR. IN CASE THERE IS A STILL BALANCE LEFT OVER, IT IS TO BE ITA NO. 523 & 524/JP/2019 ACIT, JAIPUR VS. MS KANHAIYA LAL RAMESHWAR DAS, KO TA 8 TREATED AS UNABSORBED DEPRECIATION AND IT IS TAKEN TO THE NEXT SUCCEEDING YEAR. WHERE THERE IS CURRENT DEPRE CIATION FOR SUCH SUCCEEDING YEAR THE UNABSORBED DEPRECIATIO N IS ADDED TO THE CURRENT DEPRECIATION FOR SUCH SUCCEEDI NG YEAR AND IS DEEMED AS PART THEREOF. IF, HOWEVER, THERE IS NO CURRENT DEPRECIATION FOR SUCH SUCCEEDING YEAR. WE ARE OF THE CONSIDERED OPINION THAT ANY UNABSORBED DEPRECIA TION AVAILABLE TO AN ASSESSEE ON 1 ST 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 A CT, 2001. AND ONCE THE CIRCULAR NO. 14 OF 2001 CLARIFI ED THAT THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SE T OFF OF UNABSORBED DEPRECIATION HAD BEEN DISPENSED WITH, TH E 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 GOVERNED BY THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE A CT, 2001 AND WERE AVAILABLE FOR CARRY FORWARD AND SET O FF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEARS, WITHOUT ANY LIMIT WHATSOEVER. 3.3 ON PERUSAL OF THE ABOVE DECISION, IT IS NOTED T HAT THE MATTER WAS EXHAUSTIVELY EXAMINED BY THE HONBLE HIG H COURT AND IT WAS HELD THAT ANY UNABSORBED DEPRECIATION AVAILA BLE TO ASSESSEE ON 1 ST , APRIL, 2002 (A.Y 2002-03) WILL BE DEALT WITH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32 (2) AS AMENDED BY THE FINANCE ACT 2001. IT WAS FURTHER HELD THAT AME NDED PROVISIONS OF SECTION 32(2) BY THE FINANCE ACT 2001 WOULD ALLOW UNABSORBED APPRECIATION AVAILABLE IN THE A.Y 1997-9 8, 1999- 2000, 2000-01 AND 2001-02 TO BE CARRIED FORWARD TO THE SUCCEEDING YEARS AND IF UNABSORBED APPRECIATION OR PART THEREOF COULD NOT BE SET OFF TILL A.Y. 2002-03, THEN IT WOU LD BE CARRIED FORWARD TILL THE TIME IT IS SET OFF AGAINST THE PRO FIT GAINS OF SUBSEQUENTLY YEARS. FOLLOWING THE SAID DECISION OF THE HONBLE HIGH COURT, A SIMILAR VIEW HAS BEEN REITERATED BY V ARIOUS ITA NO. 523 & 524/JP/2019 ACIT, JAIPUR VS. MS KANHAIYA LAL RAMESHWAR DAS, KO TA 9 COORDINATE BENCHES AS REFERRED BY THE ASSESSEE IN I TS SUBMISSIONS BEFORE US. 3.4. IN VIEW OF SUBSEQUENT DECISION OF THE HONBLE GUJARAT HIGH COURT IN CASE OF GENERAL MOTORS (SUPRA), THE DECISI ON OF SPECIAL BENCH IN CASE OF TIMES GUARANTY (SUPRA) IS NO MORE A BINDING PRECEDENT. A SIMILAR VIEW HAS BEEN TAKEN BY THE VAR IOUS COORDINATE BENCHES. FURTHER, NO CONTRARY JURISDICT IONAL OR OTHER AUTHORITY HAS BEEN QUOTED BEFORE THE BENCH. IN VIE W OF THE ABOVE AND RESPECTFULLY FOLLOWING THE DECISION OF TH E HONBLE GUJARAT HIGH COURT, WE ARE UNABLE TO AGREE TO THE C ONTENTION OF THE REVENUE. IN OUR VIEW, IT IS THE AMENDED SECTIO N 32(2) OF THE ACT THAT SHALL APPLY IN RELATION TO UNABSORBED DEPR ECIATION PERTAINING TO A.Y. 2000-01 AND A.Y 2001-02 AND THE RESTRICTION OF 8 YEARS WHICH WAS IN FORCE TILL THE LAW WAS AMENDED BY THE FINANCE ACT 2001 DOES NOT APPLY. IN THE INSTANT CA SE, IT IS NOT IN DISPUTE THAT THE UNABSORBED DEPRECIATION PERTAININ G TO A.YS 2000-01 AND 2001-02 HAVE NOT BEEN SET OFF IN THE EA RLIER YEARS AND THE SAME IS BEING CARRIED FORWARD TO THE YEAR U NDER CONSIDERATION FOR BEING SET OFF. IN LIGHT OF ABOVE , GROUND TAKEN BY THE REVENUE IS DISMISSED. 8. THE DECISION OF THE HONBLE GUJARAT HIGH COURT I N CASE OF GENERAL MOTORS (SUPRA), AS FOLLOWED BY US IN ABOVE DECISION , HAS SINCE BEEN FOLLOWED BY THE HONBLE RAJASTHAN HIGH COURT IN CAS E OF GINNI INTERNATIONAL (SUPRA) AS WELL AS BY THE HONBLE DEL HI HIGH COURT IN CASE OF PR CIT VS BRITISH MOTOR CAR CO. [2018] 90 TAXMAN N.COM 370 (DELHI). THE ISSUE IS THEREFORE NO MORE RES INTEGRA AND FOLL OWING THE LEGAL PROPOSITION SO LAID DOWN, IN THE INSTANT CASE, UNAB SORBED DEPRECIATION FOR AY 2001-02 AND EARLIER YEARS GOT CARRIED FORWAR D TO AY 2002-03 AND ITA NO. 523 & 524/JP/2019 ACIT, JAIPUR VS. MS KANHAIYA LAL RAMESHWAR DAS, KO TA 10 BECOMES PART THEREOF AND WILL BE GOVERNED BY THE PR OVISIONS OF SECTION 32(2) AS AMENDED BY THE FINANCE ACT, 2001 AND WILL BE AVAILABLE FOR CARRY FORWARD AND SET OFF AGAINST THE PROFITS AND G AINS OF SUBSEQUENT YEARS INCLUDING THE IMPUNGED ASSESSEMENT YEAR 2015- 16. IN LIGHT OF ABOVE DISCUSSIONS AND IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE DECISIONS REFER RED SUPRA, THE MATTER IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST TH E REVENUE. 7. WE FIND THAT THE FACTS AND CIRCUMSTANCES OF THE CASE ARE EXACTLY IDENTICAL AS IN M/S K. R. MARBLES P. LTD., KOTA (SU PRA) WHEREIN WE HAVE EXAMINED THE MATTER IN DETAIL AND FOLLOWING THE SAI D DECISION, THE MATTER IS DECIDED IN FAVOUR OF THE ASSESSEE COMPANY . 8. BOTH THE PARTIES FAIRLY SUBMITTED THAT IDENTICA L FACTS AND CIRCUMSTANCES ARE PREVALENT IN ITA NO. 524/JP/19 FO R AY 2012-13. THEREFORE, FOLLOWING OUR DECISION IN ITA NO. 523/JP /19, THE MATTER IS DECIDED IN FAVOUR OF THE ASSESSEE COMPANY. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/07/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29/07/2019. *GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ACIT, CENTRAL CIRCLE-3, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- M/S KANHAIYA LAL RAMESHWAR DAS, KOT A 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) ITA NO. 523 & 524/JP/2019 ACIT, JAIPUR VS. MS KANHAIYA LAL RAMESHWAR DAS, KO TA 11 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 523 & 524/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR