M/S K.R. MARBLES P. LTD., KOTA V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, JAIPUR

ITA 932/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3733 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 01-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAN SINGH
• Assessee Lawyers: RAJNIKANT BHATRA C.A
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 32; 154; 143(3); 72

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. 932/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2015-16 M/S K. R. MARBLES P. LTD., GUMANPURA, NEW COLONY, KOTA CUKE VS. DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-3, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAACK7346L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA. NO. 933/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2015-16 M/S RIDHI SIDHI MARBLES & GRANITES P. LTD., 1577, PARTANIYO KA RASTA, JOHARI BAZAR, JAIPUR CUKE VS. DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-3, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAACR6766P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S. R. SHARMA & SHRI RAJNIKANT BHATRA (C.A) JKTLO DH VKSJ LS @ REVENUE BY : DR RAN SINGH (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 30/05/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 31/05/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THESE ARE TWO APPEALS FILED BY THE RESPECTIVE ASSE SSEES FOR THE ASSESSMENT YEAR 2015-16 AGAINST THE ORDERS OF LD. C IT(A)-4, JAIPUR DATED ITA NO. 932 & 933/JP/2018 M/ K.R. MARBLES P. LTD., KOTA VS. DCIT, JAIPUR 2 25.04.2018 & 16.04.2018 RESPECTIVELY. SINCE THE CO MMON ISSUES ARE INVOLVED, BOTH THESE APPEALS WERE HEARD TOGETHER AN D ARE DISPOSED OFF BY THIS CONSOLIDATED ORDER. 2. IN ITA NO. 932/JP/2018, THE ASSESSEE HAS TAKEN T HE FOLLOWING GROUNDS OF APPEAL. 1. THAT THE LD. CIT(A) IS WRONG AND HAS ERRED IN L AW IN CONFIRMING THE ORDER U/S 154 PASSED BY AO WHICH IS NOT SUSTAIN ABLE IN LAW AS THERE WAS NO MISTAKE APPARENT FROM RECORD WITHIN TH E MEANING OF SECTION OF I. T. ACT, 1961. 2. THE WITHOUT PREJUDICE TO GROUND NO. (1) ABOVE TH E LD. CIT (A) IS WRONG AND HAS ERRED IN LAW IN CONFIRMING THE ACT ION OF LD. AO IN HOLDING THAT THE UNABSORBED BROUGHT FORWARD DEPRECI ATION OF AY 2001-02 & OF EARLIER YEARS CANNOT BE SET OFF IN A.Y 2015-16 AS THE TIME LIMIT FOR SET OFF WITHIN 8 YEARS HAS LAPSED AS PER PROVISIONS OF SECTION 32(2)(III) OF THE I.T. ACT, 1961 WHILE AS P ER LAW IN VIEW OF AMENDMENT MADE IN SUB SECTION 2 OF SECTION 32 OF I. T. ACT, 1961 BY THE FINANCE ACT, 2001, B/F UNABSORBED DEPRECIATION OF A.Y 2001-02 AND OF EARLIER YEARS SHALL BECOME CURRENT YEAR DEPR ECIATION FROM A.Y 2002-03 AND AS SUCH CAN BE SET OFF AGAINST INCOME U NDER ANY HEAD IN ANY YEAR AND CAN BE CARRIED FORWARD INDEFINITELY. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS ENGAGED IN THE BUSINESS OF MINING AND DEALING IN SAND STONE ITEMS. THE ASSESSMENT WAS COMPLETED U/S 143(3) READ WITH SECTION 153B(1)( B) WHEREIN UNABSORBED DEPRECIATION BROUGHT FORWARD FROM EARLIE R YEARS WAS ALLOWED. THEREAFTER, THE AO ISSUED A NOTICE U/S 154 SEEKING TO RECTIFY THE MISTAKE ITA NO. 932 & 933/JP/2018 M/ K.R. MARBLES P. LTD., KOTA VS. DCIT, JAIPUR 3 THAT THE ASSESSEE WAS ALLOWED SET OFF OF UNABSORBED DEPRECIATION OF RS. 15,34,000/- FOR A.Y 2001-02 WHICH WAS NOT ALLOWABLE AS THE TIME LIMIT OF 8 YEARS FOR SET OFF HAS LAPSED AS PER THE PROVISION O F SECTION 32(2)(III) OF THE ACT AND THEREAFTER, THE ORDER U/S 154 WAS PASSED WH EREIN THE CONTENTION OF ASSESSEE THAT THE RESTRICTION OF 8 YEARS HAS FOR CA RRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATION HAD BEEN DISPENSED WITH BY THE PROVISIONS OF SECTION 32 (2) AS AMENDED BY FINANCE ACT AND CLARIF IED BY CIRCULAR NO. 14/2001 WAS REJECTED FOR THE REASON THAT SUCH AMEND ED PROVISIONS ARE APPLICABLE FROM AY 2002-03 AND SUBSEQUENT YEARS. AC CORDINGLY, THE ASSESSEE CLAIM OF SET OFF OF UNABSORBED DEPRECIATIO N OF AY 2001-02 AND EARLIER YEARS WAS DENIED VIDE ITS ORDER PASSED U/S 154 DATED 13.06.2017. 4. ON APPEAL, THE LD. CIT(A) HAS CONFIRMED THE SAID ACTION OF THE ASSESSING OFFICER. NOW, THE ASSESSE IS IN APPEAL BE FORE US. 5. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE MA TTER IS SQUARELY COVERED BY THE DECISION OF HONBLE GUJARAT HIGH COU RT IN CASE OF GENERAL MOTORS INDIA VS. DCIT (2013) 354 ITR 244 WHEREIN IT WAS HELD BY THE HONBLE HIGH COURT THAT THE UNABSORBED DEPRECIATION CAN BE CARRIED FORWARD AND SET OFF IN THE SUBSEQUENT YEARS WITHOUT ANY TIM E LIMIT. IT WAS FURTHER SUBMITTED THAT THE FOLLOWING THE SAID DECISION, THE HONBLE JURISDICTIONAL HIGH COURT IN CASE OF PR. CIT, ALWAR VS. M/S GINNI INTERNATIONAL 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 INDIA VID E ITS ORDER DATED 13.07.2018. IT WAS FURTHER SUBMITTED THAT SIMILAR V IEW HAS BEEN TAKEN BY THE COORDINATE BENCH IN CASE OF ACIT VS. EMGEE CABL ES & 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, JAIPUR IN HIS SUBSEQUENT DECISION IN ITA NO. 932 & 933/JP/2018 M/ K.R. MARBLES P. LTD., KOTA VS. DCIT, JAIPUR 4 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 THEREFORE, THE SAID DECISION ALSO SUPPORT THE CASE OF THE ASSESSEE COMPANY. 6. PER CONTRA, THE LD. DR RELIED ON THE FINDING OF THE LOWER AUTHORITIES. 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 SIMILAR M ATTER IN CASE OF ACIT VS. EMGEE CABLES & COMMUNICATION LTD. (SUPRA) WHERE IN 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. 2000-2001 AND A.Y 2 001-02 FROM INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES P ERTAINING TO THE YEAR UNDER CONSIDERATION IN VIEW OF THE AMENDMENT E FFECTED BY THE FINANCE ACT 2001 WHICH HAS BEEN STATED TO BE APPLIC ABLE 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 DEPRECIATION H AS BEEN SUBJECT TO SEVERAL AMENDMENTS IN THE PAST AND THE LATEST AMEND MENT WHICH IS IN CONSIDERATION HAS BEEN BROUGHT IN BY THE FINANCE ACT 2001. IN THE INSTANT CASE, THE QUESTION THAT ARISES FOR CONSIDER ATION IS HOW SHOULD THE PROVISION OF SECTION 32(2) SHOULD BE APPLIED RE GARDING SET OFF OF UNABSORBED DEPRECIATION PERTAINING TO A.Y 2000-01 A ND AY 2001- 2002 WHEN THE PRE-AMENDED LAW WAS APPLICABLE AND WH ICH HAS NOW ITA NO. 932 & 933/JP/2018 M/ K.R. MARBLES P. LTD., KOTA VS. DCIT, JAIPUR 5 BEEN CLAIMED TO BE SET OFF AT THE POINT OF TIME I.E . IN A.Y 2009-10 WHEN POST AMENDMENT LAW WAS APPLICABLE. THE ASSESS ING OFFICER HAS RELIED 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) ABOVE SHA LL BE CARRIED FORWARD FOR A MAXIMUM PERIOD OF EIGHT ASSESSMENT YE ARS FROM THE ASSESSMENT YEAR IMMEDIATELY SUCCEEDING THE ASSESSME NT YEAR FOR WHICH IT WAS FIRST COMPUTED, TO BE SET OFF ONLY AGA INST THE INCOME UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PR OFESSION. 3.2 SUBSEQUENTLY, THE MATTER CAME UP FOR CONSIDERAT ION BEFORE THE HONBLE GUJARAT HIGH COURT IN CASE OF GENERAL MOTOR S INDIA PVT. LTD. 354 ITR 244 WHEREIN THE QUESTION FOR CONSIDERATION BEFORE THE HONBLE HIGH COURT WAS WHETHER UNABSORB ED DEPRECIATION PERTAINING TO THE A.Y 1997-98 COULD BE ALLOWED TO B E CARRIED FORWARD AND SET OFF AFTER A PERIOD OF 8 YEARS OR WOULD IT B E GOVERNED BY THE PROVISIONS OF SECTION 32(2) AS AMENDED BY THE FINAN CE ACT 2001. THE RELEVANT FINDING OF THE HONBLE HIGH COURT OF G UJARAT ARE CONTAINED AT PARA 35 TO 38 OF ITS ORDER 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 G AINS 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 ALLOWANCE, THE N, SUBJECT TO THE PROVISIONS OF SUB-SECTION (2) OF SECTION 72 AND SUB- SECTION (3) OF SECTION 73, THE ALLOWANCE OR THE PAR T OF THE ALLOWANCE TO WHICH EFFECT HAS NOT BEEN GIVEN, AS TH E CASE MAY BE, SHALL BE ADDED TO THE AMOUNT OF THE ALLOWANCE F OR DEPRECIATION FOR THE FOLLOWING PREVIOUS YEAR AND DE EMED TO BE ITA NO. 932 & 933/JP/2018 M/ K.R. MARBLES P. LTD., KOTA VS. DCIT, JAIPUR 6 PART OF THAT ALLOWANCE, OR IF THERE IS NO SUCH ALLO WANCE FOR THAT PREVIOUS YEAR, BE DEEMED TO BE ALLOWANCE OF THAT PR EVIOUS 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. 14 OF 200 1. THE RELEVANT PORTION OF THE SAID CIRCULAR READS AS UNDE R:- 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 DEPREC IATION 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 HAS DISP ENSED WITH THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SE T OFF OF UNABSORBED DEPRECIATION. THE ACT HAS ALSO CLARIFIE D THAT IN COMPUTING THE PROFITS AND GAINS OF BUSINESS OR PROF ESSION 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 INDIA UNLESS IT IS USED (I) IN THE BUSINESS OF RUNNING IT ON HIRE F OR TOURISTS, OR (II) OUTSIDE IN THE ASSESSEES BUSINESS OR PROFESSI ON 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 SUFFICIENT FUNDS TO REPLACE PLANT AND MACHINERY AND ACCORDINGLY THE AME NDMENT DISPENSES WITH THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATION. THE AMENDMENT IS APPLICABLE FROM ASSESSMENT YEAR 2002-03 AND SUBSEQU ENT YEARS. THIS MEANS THAT ANY UNABSORBED DEPRECIATION 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 SEC TION 32(2) AS ITA NO. 932 & 933/JP/2018 M/ K.R. MARBLES P. LTD., KOTA VS. DCIT, JAIPUR 7 AMENDED BY FINANCE ACT, 2001 AND NOT BY THE PROVISI ONS OF SECTION 32(2) AS IT STOOD BEFORE THE SAID AMENDMENT . HAD THE INTENTION OF THE LEGISLATURE BEEN TO ALLOW THE UNAB SORBED DEPRECIATION ALLOWANCE WORKED OUT IN A.Y. 1997-98 O NLY FOR EIGHT SUBSEQUENT ASSESSMENT YEARS EVEN AFTER THE AM ENDMENT OF SECTION 32(2) OF THE ACT, A PURPOSIVE AND HARMON IOUS 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 LANGUAGE OF THE SECTION WITHOUT LEANING TO THE SIDE OF ASSESSEE OR THE REVE NUE. BUT IF THE LEGISLATURE FAILS TO EXPRESS CLEARLY AND THE AS SESSEE 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 DENIED. HOWEVER, CIRCULAR N O. 14 OF 2001 HAD CLARIFIED THAT UNDER SECTION 32(2), IN COM PUTING THE PROFITS AND GAINS OF BUSINESS OR PROFESSION FOR ANY PREVIOUS YEAR, DEDUCTION OF DEPRECIATION U/S 32 SHALL BE MAN DATORY. THEREFORE, THE PROVISIONS OF SECTION 32(2) AS AMEND ED BY FINANCE ACT, 2001 WOULD ALLOW THE UNABSORBED DEPREC IATION ALLOWANCE AVAILABLE IN THE A.Y. 1997-98, 1999-2000, 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 TILL THE A.Y. 2002-03 THEN IT WOULD BE CARR IED FORWARD TILL THE TIME IT IS SET OFF AGAINST THE PROFITS AND GAIN S OF SUBSEQUENT YEARS. 38. 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 THA N THE AMOUNT OF THE PROFITS OF THAT BUSINESS, THEN SUCH EXCESS C OMES FOR ABSORPTION FROM THE PROFITS AND GAINS FROM ANY OTHE R BUSINESS OR BUSINESS, IF ANY, CARRIED ON BY THE ASSESSEE. I F A BALANCE IS LEFT EVEN THEREAFTER, THAT BECOMES DEDUCTIBLE FROM OUT OF INCOME FROM ANY SOURCE UNDER ANY OF THE OTHER HEADS OF INCOME DURING THE YEAR. IN CASE THERE IS A STILL B ALANCE LEFT OVER, IT IS TO BE TREATED AS UNABSORBED DEPRECIATIO N 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 F OR SUCH SUCCEEDING YEAR AND IS DEEMED AS PART THEREOF. IF, HOWEVER, THERE IS NO CURRENT DEPRECIATION FOR SUCH SUCCEEDIN G YEAR. WE ARE OF THE CONSIDERED OPINION THAT ANY UNABSORBED D EPRECIATION AVAILABLE TO AN ASSESSEE ON 1 ST DAY OF APRIL 2002 (A.Y. 2002-03) ITA NO. 932 & 933/JP/2018 M/ K.R. MARBLES P. LTD., KOTA VS. DCIT, JAIPUR 8 WILL BE DEALT WITH IN ACCORDANCE WITH THE PROVISION S OF SECTION 32(2) AS AMENDED BY FINANCE ACT, 2001. AND ONCE THE CIRCULAR NO. 14 OF 2001 CLARIFIED THAT THE RESTRICT ION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECI ATION HAD BEEN DISPENSED WITH, THE UNABSORBED DEPRECIATION FR OM A.Y. 1997-98 UPTO THE A.Y. 2001-02 GOT CARRIED FORWARD T O THE ASSESSMENT YEAR 2002-03 AND BECAME PART THEREOF, IT CAME TO BE GOVERNED BY THE PROVISIONS OF SECTION 32(2) AS A MENDED BY FINANCE ACT, 2001 AND WERE AVAILABLE FOR CARRY FORW ARD AND SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEA RS, 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 HIGH COURT AND IT WAS HELD THAT ANY UNABSORBED DEPRECIATION AVAILABLE TO ASSES SEE 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 FINA NCE ACT 2001. IT WAS FURTHER HELD THAT AMENDED PROVISIONS OF SECTION 32(2) BY THE FINANCE ACT 2001 WOULD ALLOW UNABSORBED APPRECIATIO N AVAILABLE IN THE A.Y 1997-98, 1999-2000, 2000-01 AND 2001-02 TO BE CARRIED FORWARD TO THE SUCCEEDING YEARS AND IF UNABSORBED A PPRECIATION OR PART THEREOF COULD NOT BE SET OFF TILL A.Y. 2002-03 , THEN IT WOULD BE CARRIED FORWARD TILL THE TIME IT IS SET OFF AGAINST THE PROFIT GAINS OF SUBSEQUENTLY YEARS. FOLLOWING THE SAID DECISION OF THE HONBLE HIGH COURT, A SIMILAR VIEW HAS BEEN REITERATED BY VARIOU S COORDINATE BENCHES AS REFERRED BY THE ASSESSEE IN ITS SUBMISSI ONS 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 JURISDICTIONAL OR OT HER AUTHORITY HAS BEEN QUOTED BEFORE THE BENCH. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE GUJARAT HIGH COURT, WE ARE ITA NO. 932 & 933/JP/2018 M/ K.R. MARBLES P. LTD., KOTA VS. DCIT, JAIPUR 9 UNABLE TO AGREE TO THE CONTENTION OF THE REVENUE. IN OUR VIEW, IT IS THE AMENDED SECTION 32(2) OF THE ACT TH AT SHALL APPLY IN RELATION TO UNABSORBED DEPRECIATION PERTAINING TO A .Y. 2000-01 AND A.Y 2001-02 AND THE RESTRICTION OF 8 YEARS WHICH WA S IN FORCE TILL THE LAW WAS AMENDED BY THE FINANCE ACT 2001 DOES NOT AP PLY. IN THE INSTANT CASE, IT IS NOT IN DISPUTE THAT THE UNABSOR BED DEPRECIATION PERTAINING TO A.YS 2000-01 AND 2001-02 HAVE NOT BEE N SET OFF IN THE EARLIER YEARS AND THE SAME IS BEING CARRIED FORWARD TO THE YEAR UNDER 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 DELHI HIGH COURT IN CASE OF PR CIT VS BRITISH MOTOR CAR CO. [2018] 90 TAXMANN.COM 370 (DE LHI). THE ISSUE IS THEREFORE NO MORE RES INTEGRA AND FOLLOWING THE LEGAL PROPOSITION SO LAID DOWN, IN THE INSTANT CASE, UNABSORBED DEPRECIATION FOR AY 2001-02 AND EARLIER YEARS GOT CARRIED FORWARD TO AY 2002-03 AND BECOMES PART THEREOF AND WILL BE GOVERNED BY THE PROVISIONS OF SECTION 3 2(2) AS AMENDED BY THE FINANCE ACT, 2001 AND WILL BE AVAILABLE FOR CARRY F ORWARD AND SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEARS INCLUDING THE IMPUNGED ASSESSEMENT YEAR 2015-16. IN LIGHT OF ABOVE DISCUSS IONS AND IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE AND RESPECTF ULLY FOLLOWING THE DECISIONS REFERRED SUPRA, THE MATTER IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 9. IN ITA NO. 933/JP/2018, SINCE FACTS AND CIRCUMST ANCES OF THE CASE ARE EXACTLY IDENTICAL TO FACTS AND CIRCUMSTANCES OF THE CASE IN ITA NO. ITA NO. 932 & 933/JP/2018 M/ K.R. MARBLES P. LTD., KOTA VS. DCIT, JAIPUR 10 932/JP/2018, OUR FINDINGS AND DIRECTIONS CONTAINED THEREIN SHALL APPLY MUTATIS MUTANDIS TO THIS APPEAL. IN THE RESU LT, THE MATTER IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN THE RESULT, BOTH THE APPEALS OF THE RESPECTIVE A SSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/05/2019. 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:- 31/05/2019. *GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S K.R MARBLES P. LTD., KOTA & M/S RIDHI SIDHI MARBLES & GRANITES P. LTD., JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CENTRAL CIRCLE-3, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 932 & 933/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR