Asstt. Commissioner of Income Tax-6, Kanpur V. M/s U.P Small Industries Corporation Ltd., Kanpur

ITA 6/LKW/2014

• Counselvise Citation: 623714 RSA 2014
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-06-2015
• Assessment Year: 1990-1991
• Appeal Filed On: 03-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; Unabsorbed depreciation

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.06/LKW/2014 ASSESSMENT YEAR:1990 - 91 U.P. SMALL INDUSTRIES CORPORATION LTD. 110, INDUSTRIAL ESTATE, FAZALGANJ, KANPUR. PAN:AAACZ0776B VS A.C.I.T. - 6, KANPUR. (RESPONDENT) (APPELLANT) SHRI R. K. RAM, D. R. APPELLANT BY NONE RESPONDENT BY 10/06/2015 DATE OF HEARING 07 /07/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, KANPUR DATED 12/09/2013 FOR THE ASSESSMENT YEAR 1990 - 1991. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE AO TO CALCULATE THE AMOUNT OF DEPRECIATION ALLOWABLE & ALLOW ADJUSTMENT OF THE SAME, WITHOUT APPRECIATING THE FACT THAT THE CBDT CIRCULAR DOES NOT EMPOWER AOS TO ALLOW CLAIMS WHERE NONE HAVE BEEN MADE. 2. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE RELIEF TO THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD NOT FILED ITS RETURN OF INCOME FOR A.Y. 1989 - 90, THEREFORE, IT IS NOT POSSIBLE FOR AO TO ASCERTAIN THE INCOME OF THE YEAR. 2 3. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE R ELIEF TO THE ASSESSE E WITHOUT APPRECIATING THE FACTS THAT THE AO COULD NOT HAVE PRESUMED THAT INCOME FOR THE YEAR IN WHICH RETURN WAS NOT FILED WAS INSUFFICIENT TO ABSORB THE UNABSORBED DEPRECIATION AND ALLOW CARRY FORWARD . 4. TH E ORDER OF THE CI T (A), KANPUR BEING ERRONEOUS, UNJUST AND BAD IN LAW BE VACATED AND THE ORDER OF THE AO BE RESTORED. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE APPOINTED DATE OF HEARING IN SPITE OF NOTICE AND HENCE, WE PROCEED TO DECIDE THIS APP EAL OF THE REVENUE EX - PARTE QUA THE ASSESSEE. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. OF THE REVENUE, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW . WE FIND THAT AS PER THE ASSESSMENT ORDER, THE CLAIM OF THE ASSESSEE REGARDING SET OFF OF BROUGHT FORWARD UNABSORBED DEPRECIATION FROM ASSESSMENT YEAR 1989 - 90 HAS BEEN REJECTED BY THE ASSESSING OFFICER ON THE BASIS THAT THE ASSESSEE HAS NOT FILED RETURN OF INCOME FOR ASSESSMENT YEAR 89 - 80 AND THEREFORE, THERE IS ALL PROBABILITY THAT THE INCOME FOR THE ASSESSMENT YEAR 1989 - 90 IF ASSESSED UNDER THE PROVISIONS OF THE INCOME TAX ACT MIGHT HAVE BEEN SUFFICIENT TO ABSORB THE UNABSORBED DEPRECIATION BROUGHT FORWARD FROM ASSESSMENT YEAR 1987 - 88 AND 1988 - 89 AND THEREFORE, NO SET OFF OF ANY BROUGHT FORWARD LOSSES CAN BE ALLOWED IN THE PRESENT YEAR. INSPITE OF THIS FINDING OF THE ASSESSING OFFICER, THE CIT(A) HAS DECIDED THE ISSUE ON THE BASIS THAT CLAIM OF UNABSORBED DEPRECIATION IS ALLOWABLE EVEN IF NO RETURN IS FILED (IF NOT CLAIMED IN ORIGINAL RETURN) . THIS IS WITH REFERENCE TO NOT MAKING THE CLAIM OF DEPRECIATION BY THE ASSESSEE IN THE RETURN OF INCOME BUT THIS STAND OF THE ASSESSING OFFICER IS NOT CONTROVERTED BY CIT(A) THAT ANY BROUGHT FORWARD UNABSORBED DEPRECIATION WAS AVAILABLE FOR SET OFF IN THE PRESENT YEAR EVEN 3 THOUGH NO RETURN WAS FILED IN ASSESSMENT YEAR 1989 - 90. HENCE, IN OUR CONSIDERED OPINION, THE ORDER OF CIT(A) IS NOT SUSTAINABLE AND THEREFORE, WE R EVERSE THE SAME AND RESTORE THAT OF THE ASSESSING OFFICER. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07 /07/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR