The DCIT, Circle-4, Ahmedabad V. Gujarat Lease Finance Ltd., Ahmedabad

MA 286/AHD/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5719 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 16-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: P M MEHTA
• Keywords: Depreciation; Rectification of order; Unabsorbed depreciation
• Section: 143(3); 32; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SHR I S.S. GODARA , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE DCIT, CIRCLE - 4 , AHMEDABAD, (APPELLANT) VS GUJARAT LEASE FINANCE LTD. HASUBHAI CHAMBERS, OPP.TOWN HALL, ELLISBRIDGE, AHMEDABAD PAN : AAACG8354N (RESPONDENT) REVENUE BY : S H RI ROOPCHAND, D . R. ASSESSEE BY: SHRI P.M. MEHTA A.R. DATE OF HEARING : 02 - 02 - 2 018 DATE OF PRONOUNCEMENT : 23 - 02 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS MISCELLANEOUS APPLICATION OF THE REVENUE IS ARISEN AGAINST THE FINDINGS OF THE ITAT VIDE ITA NO. 2393/AHD/2013 FOR ASSESSMENT YEAR 2008 - 09 D ATED 03 - 05 - 2017. THE CONTENTS OF THE MA IS REPRODUCED AS UNDER : - PLEASE REFER TO THE ORDER NO. ITA NO. 2393/AHD/2013 DATD 03.05.2017 IN THE CASE OF M/S. GUJARAT LEASE FINANCE LIMITED FOR A.Y. 2008 - 09 WHEREIN HON'BLE ITAT HAS DISPOSED OFF THE APPEAL IN THE FAVOUR OF ASSESSEE. 2. IT IS RELEVANT TO MENTION THAT THIS OFFIC E HAD FILED AN APPEAL BEFORE THE HON'BLE ITAT CHALLENGING THE DECISION OF THE LD. CIT(A) - VII1, AHMEDABAD'S ORDER NO. CIT(A) - VLII/ACIT/CIR.4/16/12 - 13 DATED 16/07/2013 WHEREIN ALLOWED THE BROUGHT FORWARD UNABSORBED DEPRECIATION BEYOND 8 YEARS PERTAINING TO A .Y. 2000 - 01. THE REVENUE HAD FILED APPEAL BEFORE THE HON;BLE ITAT IN THE ABOVE MENTIONED CASE FOR A.Y. 2008 - 09 ON TWO GROUNDS: - I) THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE BROUGHT FORWARD UNABSORBED DEPRECIATION OF RS 38,76,65,533/ - BE YOND 8 YEARS PERTAINING TO A.Y. 2000 - 01 MA NO . 286 / A HD/20 17 (ARISING OUT OF ITA N O. 2393 /AHD/2013 ) A SSESSMENT YEAR 20 08 - 09 M A NO. 286 /AHD/201 7 {ARISING OUT OF IT A NO. 2393 /AHD/20 13 } A.Y. 2008 - 09 PAGE NO DCIT VS. GUJARAT LEASE FINANCE LTD. 2 WHICH HAS REJECTED BY THE ASSESSING OFFICER AS PER PROVISION OF SUBSECTION 2(III)(B) OF SECTION 32 OF THE IT ACT WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE. II) THE ID .CIT(A) HAS ALSO ERRED IN LAW IN RELYIN G UPON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS (I) PRIVATE LIMITED AS THE FACTS OF THE SAID CASE LAW WAS DIFFERENT FROM THE FACTS OF THE ASSESSEE'S CASE IN AS MUCH AS THAT IN THE SAID DECISION THE HON'BLE HIGH COURT HAS CONSIDERED THE ISSUE IN CONNECTION WITH RE - OPENING OF THE ASSESSMENT.' 3. THEREAFTER, DECISION OF HON'BLE 1TAT DATED 03.05.2017 REGARDING ABOVE APPEAL WAS RECEIVED BY THE OFFICE OF PR.CLT - 2, AHMEDABAD ON 05/06/2017, WHEREIN THE HON'BLE 1TAT HAD F AILED TO ADJUDICATE SEPARATELY UPON GROUND NO.2. THUS NO VERDICT ON ABOVE POINT HAS BEEN GIVEN BY THE H ON'BLE IT AT ON GROUND NO.2. 4. IN VIEW OF THE ABOVE FACTS, THE PR. CIT - 2, AHMEDABAD VIDE LETTER NO. PR.CIT - 2/ABD/DCLT(HQ) - 2/M.A.APPR./52/2017 - 18 DATED 10/11/201 7 HAS APPROVED FOR FILING AN MISCELLANEOUS APPLICATION AND HAS ALSO AUTHORIZED THIS OFFICE TO FILE MISCELLANEOUS APPLICATION IN THIS REGARD. 5. FOR THE PURPOSE, I SUBMIT HEREWITH THE COPY OF THE IT AT ORDER DAT ED 03/05/2017, CI T(A) ORDER DATED 16/07/2013, ASSESSMENT ORDER U/S 143(3) DATED 30.06.200.8, RECTIFICATION ORDER U/S 154 OF THE INCOME TAX ACT DATED 29/03/2012 AND COPY OF LETTER DATED 10/11/2017 OF THE PR. CIT - 2, AHMEDABAD AUTHORIZING TO REGISTER THE MISCELLANEOUS APPLICATION IN THE ABOVE MENTIONED A SSESSEE FOR THE A.Y. 2008 - 09 6. KINDLY ACKNOWLEDGE OF HAVING FILED THE MISCELLANEOUS APPLICATION AGAINST ORDER NO. ITA NO, 2393/AHD/2013 DATED 03/05/2017. 2. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE OBSERVE THAT T HE REVE NUE IN THE MISC . APPLICATION HAS GROSSLY MISQUOTED THE PRINCIPLES LAID DOWN BY THE HON BLE COURT IN THE JUDICIAL PRONOUNCEMENT MADE IN THE CASE OF GENERAL MO T ORS INDIA (P) LTD. VS. DCIT (2012) 25 TAXMANN.CM 364 (G UJ) . THE PART OF THE JUDICIAL FINDINGS A ND THE PRINCIPLES LAID DOWN BY THE HON BLE JURISDICTIONAL HIGH COURT ARE AGAIN REPRODUCED H ER E AS UNDER : - WE ARE OF THE CONSIDERED OPINION THAT ANY UNABSORBED DEPRECIATION AVAILABLE TO AN ASSESSEE ON 1ST DAY OF APRIL 2002 (A.Y. 2002 - 03) WILL BE DEALT WI TH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE ACT, 2001. AND ONCE THE CIRCULAR NO. 14 OF 2001 CLARIFIED THAT THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATION HAD BEEN DISPENSED WITH, THE UNAB SORBED 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 ACT, 2001 AND WERE AVAILABLE FOR CARRY F ORWARD AND SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEARS, WITHOUT ANY LIMIT WHATSOEVER. THE JUDICIAL FINDINGS OF THE AFORESAID DECISION AS ELABORATED IN THE DECISION OF THE LD. CIT(A) ARE DULY INCORPORATED AT PARA 5 OF THE AFORESAID ORDER OF THE ITAT DATED 03 - 05 - 2017 . THE REVENUE HAS FAILED TO REBUT AND CONTROVERT THE FINDINGS AS SUPRA WITH ANY RELEVANT MATERIAL . IN ADDITION TO ABOVE IT HAS ALSO BEEN M A NO. 286 /AHD/201 7 {ARISING OUT OF IT A NO. 2393 /AHD/20 13 } A.Y. 2008 - 09 PAGE NO DCIT VS. GUJARAT LEASE FINANCE LTD. 3 ELA BORATED IN THE ORDER OF THE ITAT THAT THE HON BLE HIGH COURT OF GUJARAT IN T H E CASE OF CIT VS. GUJARAT THEMIS BIO LTD. (2014) 44 TAXMAN HAS FOLLOWED THE JUDICIAL FINDINGS LAID DOWN IN THE DECISION OF THE GENERAL MOTORS (P) L TD . THESE MATERIAL FACTS WERE NOT DISPUTED BY THE REVENUE. WE OBSERVE THAT POWER OF RECTIFICATION UNDER SECTION 25 4(2) OF THE ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD, HOWEVER IN THIS CASE REVENUE HAS FAILED TO DEMONSTRATE ANY MISTAKE APPARENT FROM RECORD. WE OBSERVE THA T THE REVENUE HAS FAILED TO CONTROVERT HOW THE JUDICIAL FINDINGS OF THE HON BLE JURISDICTIONAL HIGH COURT BASED ON THE CBDT CIRCULAR AND THE AMENDMENT MADE IN THE FINANCE ACT ARE EXTRAN E OUS TO THE PRINCIPLES LAID DOWN ON IS SUE OF CARRY FORWARD OF UN - ABSORB ED DEPRECIATION. IN VIEW OF THE ABOVE W E CONSIDER THAT THE THERE IS A NO MERIT IN THE MISC. APPLICATION FILED BY THE REVENUE. THEREFORE, THE MISC . APPLICATION OF THE REVENUE IS DISMISSED. 3. IN THE RESULT, THE MA FILED BY THE REVENUE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 23 - 02 - 201 8 SD/ - SD/ - ( S.S. GODARA ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 23 /02 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,