DCIT CEN CIR 2(4), MUMBAI V. AJMERA CEMENT P.LTD, MUMBAI

ITA 761/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3148 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHAMMED RIZWAN
• Assessee Lawyers: PRAKASH K JOTWANI
• Keywords: Depreciation; Unabsorbed depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 761/MUM/2015 (ASSESSMENT YEAR 2008 - 2009) DCIT, CENTRAL CIRCLE - 2(4), MUMBAI. VS. M/S. AJMERA CEMENT PVT. LTD. 2 ND FLOOR, CITIMALL, ANDHERI LINK ROAD, ANDHERI (W), MUMBAI 400 053. ( APPELLANT ) .. ( RESPONDENT ) PAN NO.AADCA1126F ASSESSEE BY : SHRI PRAKASH K. JOTWANI DEPARTMENT BY : SHRI MOHAMMED RIZWAN DATE OF HEARING : 23.06.2016 DATE OF PRONOUNCEMENT : 23 .06.2016 O R D E R THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DT. 12.12.2014 PASSED BY LD. CIT(A) 48, MUMBAI AND IT RELATES TO ASSESSMENT YEAR 2008 - 09. THE REVENUE IS AGGRIEVED BY THE DECISION OF THE LD. CIT(A) IN HOLDING THAT THE UNABSORBED DEPRECIATIO N RELATING TO ASSESSMENT YEARS 1997 - 98 TO 1999 - 2000 CAN BE SET - OFF AGAINST THE CURRENT YEARS INCOME AND THE BALANCE AMOUNT NOT SO SET OFF COULD BE CARRIED FORWARD IN THE SUCCEEDING YEARS. 2 M/S. AJMERA CEMENT PVT. LTD. ITA NO. 761/MUM/2015 2. I HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSIN G OFFICER HELD THAT THE UNABSORBED DEPRECIATION PERTAINING TO ASSESSMENT YEARS 1997 - 9 8 TO 1999 - 2000 CANNOT BE SET - OFF AGAINST THE CURRENT YEARS INCOME , ON THE REASONING THAT THE PROVISIONS OF SEC. 32(2) OF THE ACT, PRIOR TO ITS AMENDMENT BY FINANCE ACT, 2 001 W.E.F. 1.4.2002 , HAD PROVIDED A TIME LIMIT OF 8 YEARS FOR CARRYING FORWARD THE UNABSORBED AMOUNT OF DEPRECIATION. THE LD. CIT(A), HOWEVER, ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE DECISION RENDERED BY HONBLE GUJARAT HIGH COURT IN THE CASE O F GENERAL MOTORS INDIA PVT. LTD. (SPECIAL CIVIL APPLICATION NO. 1773 OF 2012) DT. 23.8.2012 . THE LD. CIT(A) ALSO NOTICED THAT THE DECISION RENDERED BY THE HONBLE GUJARAT HIGH COURT IN THE ABOVE SAID CASE HAS BEEN FOLLOWED BY THE COORDINATE BENCH OF TRIBUN AL IN THE CASE OF ARCH FINE CHEMICALS P. LTD. (ITA NOS. 2414 & 2415/MUM/2012 DT. 9.10.2013 ) . ACCORDINGLY, THE LD. CIT(A) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND DIRECTED THE ASSESSING OFFICER TO ALLOW SET - OFF OF UNABSORBED DEPRECIATION BROUGHT FORWARD FROM ASSESSMENT YEARS 1997 - 98 TO 1999 - 2000 AND ALLOW CARRY FORWARD OF BALANCE REMAINING AFTER SET - OFF. AGGRIEVED, THE REVENUE HAS FILED THIS APPEAL BEFORE US. 3. THE LD. COUNSEL FOR THE ASSESSEE PLACED HEAVY RELIANCE ON THE ORDER PASSED BY THE LD . CIT(A) AND SUBMITTED THAT THE LD. CIT(A) HAS FOLLOWED THE DECISION RENDERED BY THE HONBLE GUJARAT HIGH COURT AS WELL AS THE COORDINATE BENCH OF THE TRIBUNAL. ON THE CONTRARY, THE LD. DR PLACED RELIANCE ON THE ORDER PASSED BY THE ASSESSING OFFICER. 4. HAVING HEARD THE RIVAL CONTENTIONS, I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER PASSED BY THE LD. CIT(A) , SINCE HE HAS DECIDED 3 M/S. AJMERA CEMENT PVT. LTD. ITA NO. 761/MUM/2015 THE ISSUE BY FOLLOWING THE DECISION S RENDERED BY THE HONBLE GUJARAT HIGH COURT AND THE COORDINATE BENCH OF THE TRIBUNAL (REFERRED SUPRA). 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23RD JUNE, 2016. SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 23RD JUNE, 2016 *SSL* 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