2018 (6) TMI 444 - AT - Income Tax

Assessment u/s 153A - Unabsorbed depreciation - Disallowance on account of carry forward loss - Held that - Unabsorbed depreciation should be allowed to be carried forward since it is not covered by the limitation of sec 80 but it is governed u/s 32(2) - thus CIT(A) has rightly directed the AO to verify the claim of depreciation of ₹ 40,35,877/- and allow set off in the next/subsequent years, which does not need any interference on our part - CIT(A) has rightly directed the AO to verify the claim of depreciation of ₹ 40,35,877/- and allow set off in the next/subsequent years, which does not need any interference on our par- appeal of Revenue is dismissed. Assessment u/s 153A - Carry forward of business loss - Held that - When the AO has accepted the revised return filed by the assessee u/s 153A, no occasion arises to refer to the previous return filed u/s 139 - thus respectfully following the decisions of Hon ble Delhi High Court decision in the case Commissioner of Income-tax-19 Vs Neeraj Jindal 2017 (2) TMI 1002 - DELHI HIGH COURT we find merit in assessee s submissions that u/s. 153A return is deemed to be return u/s 139(1) and that restrictive provisions of section 80 do not apply to this case - thus AO is directed to allow the claim of carry forward of business loss of assessee - Cross Objection is decided in favour of the assessee.

Summary

Issues Involved:
1. Allowance of unabsorbed depreciation.
2. Carry forward of business loss.

Detailed Analysis:

1. Allowance of Unabsorbed Depreciation:
The Revenue challenged the CIT(A)'s decision to allow the carry forward of unabsorbed depreciation amounting to ?40,35,877/-. The Assessee contended that unabsorbed depreciation is governed by Section 32(2) of the Income Tax Act, 1961, and not by the restrictive provisions of Section 80. The Assessee cited several judicial precedents, including CIT Vs. Govind Nagar Sugar Ltd., CIT Vs. Haryana Hotels Ltd., and Brahamavar Chemicals Pvt. Ltd. Vs. CIT, which supported the view that unabsorbed depreciation can be carried forward irrespective of the time limits prescribed under Section 139(1). The Tribunal upheld the CIT(A)'s decision, agreeing that unabsorbed depreciation is not subject to the limitations of Section 80 and should be allowed to be carried forward. The Tribunal directed the AO to verify the claim of depreciation and allow set-off in subsequent years.

2. Carry Forward of Business Loss:
The Assessee claimed a business loss of ?2,78,08,927/- in the return filed under Section 153A, which was not allowed to be carried forward in the original assessment under Section 143(3) due to the delayed filing of the return. The Assessee argued that a return filed under Section 153A should be treated as a return filed under Section 139(1), and thus, the restrictive provisions of Section 80 should not apply. The Assessee relied on several judicial precedents, including the ITAT Pune decision in Sanjay Nandlal Vyas Vs ITO and the Delhi High Court decision in Principal Commissioner of Income-tax-19 Vs Neeraj Jindal, which held that returns filed under Section 153A are deemed to be returns under Section 139(1) and are not subject to the limitations of Section 80.

The Tribunal agreed with the Assessee's contentions, noting that Section 153A overrides the provisions of Section 139 and that the return filed under Section 153A replaces the original return filed under Section 139. The Tribunal also observed that the decisions cited by the Assessee, including those of the Bombay High Court and the Chennai ITAT, supported the view that returns filed under Section 153A should be treated as returns filed under Section 139(1). The Tribunal concluded that the Assessee is eligible for the carry forward of the business loss and directed the AO to allow the claim.

Conclusion:
The Tribunal dismissed the Revenue's appeal regarding the carry forward of unabsorbed depreciation and allowed the Assessee's cross-objection regarding the carry forward of the business loss. The Tribunal upheld the CIT(A)'s decision on the unabsorbed depreciation and directed the AO to allow the carry forward of the business loss as claimed by the Assessee.