2017 (9) TMI 490 - HC - Income Tax

Claim of unabsorbed business loss, depreciation of amalgamated company - Order passed by BIFR u/s 32(2) of SICA r.w.s.72A(2)(ii) of IT Act - as per the order of BIFR, assessee eligible to carry forward business loss & unabsorbed depreciation of amalgamating company maximum of ₹ 75 lakhs - AO disallowed depreciation claim of ₹ 27,09,294/- for AY 1992-93 Tribunal hold provision u/s 72A of the IT Act shall override the provisions u/s 32(2) and 43(6) of the SICA Act. - Held That - ITAT did not commit an error in confirming the disallowance of depreciation amounting to ₹ 27,09,294/ in respect of the assets of M/s. Modern Stramit (I) Ltd., a Company amalgamated with the appellant- Company, in terms of the order dated 6- 5- 1992 passed by BIFR. - Decided against the assessee.

Issues Involved:
1. Disallowance of depreciation amounting to ?27,09,294 in respect of assets of the amalgamated company.
2. Disallowance of depreciation on the value of assets not actually allowed under Section 32 read with Section 43(6) and Section 72A of the Income Tax Act, 1961.
3. Non-allowance of the benefit of unabsorbed depreciation despite compliance with Section 72A of the Income Tax Act, 1961 read with Sections 18 and 32(2) of the Sick Industrial Companies (Special Provisions) Act, 1985.

Detailed Analysis:

1. Disallowance of Depreciation Amounting to ?27,09,294:
The denial of depreciation of ?27,09,294 was based on the BIFR order dated 6-5-1992, which specified a maximum tax benefit of ?75 lakhs under Section 72A of the Income Tax Act, 1961. The Assessing Officer disallowed the claim beyond this limit, asserting that the tax benefit was capped by BIFR’s intention. The CIT and the Income Tax Appellate Tribunal upheld this decision, emphasizing that Section 72A, being a special provision, overrides other provisions of the Act, including Sections 32(2) and 43(6). The Tribunal noted that the assessee could have absorbed the entire unabsorbed depreciation by prioritizing it over the business loss but chose otherwise, leading to a portion of the depreciation remaining inadmissible.

2. Disallowance of Depreciation on the Value of Assets Not Actually Allowed:
The CIT referenced the decision in Commissioner of Income Tax v. Hindustan Petroleum Corporation Ltd., which allowed enhancement of the written down value of assets. However, this decision was deemed inapplicable as it predated the insertion of Section 72A, which specifically governs the carry forward of business loss and unabsorbed depreciation in cases of amalgamation. The Tribunal confirmed that Section 72A, with its overriding effect, dictated the admissibility of depreciation claims, thus supporting the disallowance by the Assessing Officer.

3. Non-Allowance of Benefit of Unabsorbed Depreciation:
The Tribunal and authorities below held that the provisions of Section 72A, designed to incentivize the revival of sick industries, took precedence over other sections. The Delhi High Court in IEL Ltd. v. Union of India & Ors. supported this view, stating that Section 72A aims to encourage robust companies to amalgamate with sick units, providing tax benefits as an incentive. The Tribunal noted that the assessee’s choice to exhaust business loss first, within the ?75 lakh limit set by BIFR, led to the inadmissibility of a portion of unabsorbed depreciation.

Conclusion:
The Tribunal did not err in confirming the disallowance of depreciation amounting to ?27,09,294 in respect of the assets of the amalgamated company, adhering to the BIFR order and the provisions of Section 72A. The other questions of law do not survive, and the appeals were dismissed without costs.

← Previous Next →