2016 (4) TMI 376 - AT - Income Tax

Disallowance of depreciation to be carried forward - revision u/s 263 as the issue of unabsorbed depreciation has not been examined by AO as wrongly allowed to be carried forward by the order of AO - Held that - As decided in the case of General Motors India (P) Ltd. vs. DCIT 2012 (8) TMI 714 - GUJARAT HIGH COURT any unabsorbed depreciation available to an assessee on 1st day of April 2002 (A.Y. 2002-03) will be dealt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001, thus 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 unabsorbed 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 forward and set off against the profits and gains of subsequent years, without any limit whatsoever In this view of the matter, we find that the order passed by Assessing Officer is not erroneous and prejudicial to the interest of revenue. In this view of the matter, we reverse the order of Ld. CIT passed u/s. 263 - Decided in favour of assessee

Summary

Issues:
Disallowance of carried forward depreciation

Analysis:
The appeal was filed by the assessee against the order of the Commissioner of Income Tax, Kolkata, confirming the disallowance of carried forward depreciation amounting to Rs. 228,77,86,812. The assessee contended that the Assessing Officer (AO) erred in disallowing the depreciation to be carried forward. The assessee, a limited company engaged in cement manufacturing, had unabsorbed depreciation from assessment years 1992-93 to 2001-02. The Commissioner found that the AO had not examined the issue of unabsorbed depreciation, leading to the order being considered erroneous and prejudicial to revenue. The Commissioner issued a show cause notice under section 263 of the Income Tax Act for clarification. The assessee argued that for the relevant assessment year 2007-08, no set-off of unabsorbed depreciation from 1992-93 to 2001-02 had been claimed. The assessee also highlighted the removal of restrictions on claiming unabsorbed depreciation from April 1, 2002, allowing carry forward for any number of years. However, the Commissioner disregarded the claim, stating that the unabsorbed depreciation pertained to years before the amendment in the IT Act, making the AO's order erroneous. The Commissioner directed the AO to pass a fresh order after providing a hearing to the assessee.

The assessee appealed to the Appellate Tribunal, where both parties presented their arguments. The Tribunal noted that the AO had allowed the carried forward depreciation but the Commissioner found it not allowable for more than eight years. The Tribunal referred to a judgment by the Gujarat High Court in a similar case, where relief was granted to the assessee. Following the High Court's decision, the Tribunal concluded that the AO's order was not erroneous and prejudicial to revenue. Therefore, the Tribunal reversed the Commissioner's order under section 263, allowing the ground of the assessee's appeal.

In conclusion, the Tribunal allowed the assessee's appeal, overturning the Commissioner's order. The judgment highlighted the importance of considering legal provisions and judicial precedents in determining the allowability of carried forward depreciation, ultimately ruling in favor of the assessee based on the Gujarat High Court's decision.