2015 (9) TMI 1752 - AT - Income Tax

Rectification of application u/s 154 - Set off the carried forward depreciation from earlier years - HELD THAT - Assessee would be in a position to demonstrate before the AO in respect of the claim of depreciation. There is not dispute with regard to the fact. It has been held in case of CIT Vs. Virmani Industries Pvt. Ltd. 1995 (10) TMI 1 - SUPREME COURT even if there is no activity being carried out by the assessee is a particular year however he would be entitled to set off the carried forward depreciation from earlier years. Therefore after considering the totality of the fact we deem it proper to modify our order 2014 (6) TMI 1034 - ITAT AHMEDABAD and restore the issue of claim of depreciation to the file of AO for decision afresh. We hereby modify our order accordingly.

Summary

Issues involved:
1. Rectification of mistake in the order dated 27.06.2014 regarding depreciation claim for Assessment Years 2006-07 to 2009-10.
2. Entitlement of the assessee for depreciation.
3. Verification of claim of depreciation by the Assessing Officer.
4. Modification of the order to restore the issue of claim of depreciation to the file of Assessing Officer for fresh decision.

Detailed Analysis:
The Appellate Tribunal ITAT Ahmedabad considered Miscellaneous Applications filed by the assessee through a liquidator seeking rectification of a mistake in the order dated 27.06.2014 for Assessment Years 2006-07 to 2009-10. The Tribunal acknowledged the acceptance of the assessee's contention regarding entitlement to depreciation based on a judgment of the Hon'ble Apex Court. However, it noted a lack of clarity in the records regarding the carried forward depreciation and the acceptance of the decision of the ld. CIT(A) in a previous assessment year. The assessee claimed entitlement to depreciation, emphasizing that it can be verified by the Assessing Officer, while the Revenue argued that no specific mistake was pointed out in the Tribunal's order, warranting dismissal of the Miscellaneous Application.

Upon hearing the contentions and examining the material on record, the Tribunal recognized the assessee's ability to demonstrate the claim of depreciation before the Assessing Officer. Referring to the judgment of the Hon'ble Apex Court, the Tribunal emphasized that even if no activity was conducted in a particular year, the assessee could set off carried forward depreciation from earlier years. Consequently, the Tribunal deemed it appropriate to modify its previous order and referred the issue of the claim of depreciation back to the Assessing Officer for a fresh decision. The Assessing Officer was directed to review the details provided by the assessee and decide on the issue in light of the judgment of the Hon'ble Supreme Court mentioned earlier. As a result, the Tribunal allowed all Miscellaneous Applications filed by the assessee for statistical purposes only.

The judgment was delivered by Shri Kul Bharat, Judicial Member, and was pronounced in open Court on 21/09/2015.