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TMI Blog2004 (4) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of the assessee to set off the unabsorbed depreciation of earlier years against the income from house property for the year under consideration, we dismiss the same. As discussed, the Hon'ble Supreme Court in the case of Commissioner of Customs v. Indian Oil Corpn. [ 2004 (2) TMI 66 - SUPREME COURT] has reiterated the well established position regarding binding nature of the Board Circulars while holding that it is not open to the Revenue to file an appeal against order passed in conformity with the Board Circular.In the present appeal the Revenue, however, has challenged the order of learned CIT(A) which is in conformity with the Board Circular as referred to hereinabove and since the assessee has been dragged into these appellate proceedings before the Tribunal despite a direct and explicit Circular on the point issued by the Board, we are of the view that it is a fit case to award cost to the assessee by exercising the discretion under section 254(2B) which we quantify in a sum of Rs. 1,000. In the result, the appeal filed by the Revenue is dismissed. - HON BLE R. V. EASWAR, J.M. AM. JAGTAP, A.M. For the Appellant : Ms. Parwinder Kaur For the Respondent : Rakesh Gup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Act 1996 with effect from 1-4-1997 and became applicable from Assessment year 1997-98 i.e. the year under consideration. It is, therefore, pertinent to refer to the provisions of Section 32(2) as existed prior to the amendment made by the Finance (No.2) Act 1996 as well as subsequent to such amendment: - Provisions of section 32(2) prior to amendment made by Finance (No.2) Act, 1996 with effect from 1-4-1997- (2) Where, in the assessment or the assessee, full effect cannot be given to any allowance under clause (ii) of sub-section (1) in any previous year, owing to there being no profits or gains chargeable for that previous year, or owing to the profits or gains being less than the allowance, then, subject to the provisions of sub-section (2) of section 72 and sub-section (3) of section 73, the allowance or part of the allowance to which effect has not been given, as the case may be, shall be added to the amount of the allowance for depreciation for the following previous year and deemed to be part of that allowance, or if there is no such allowance for that previous year, be deemed to be the allowance for that previous year, and so on for the succeeding previous years. Provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall have the meaning assigned to it in clause (ga) of sub-section (1) of section 3 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986). 4. A comparative reading of the aforesaid provisions prior to the amendment as well as subsequent to the amendment clearly shows that not only the benefits available to the assessee as per the pre-amended section of 32(2) by way of treatment given to the unabsorbed depreciation of the earlier years as current year's depreciation by deeming fiction, were taken away by the amendment made in the said section by Finance (No.2) Act, 1996, with effect from 1-4-1997, but even the period available to set off such unabsorbed depreciation against the profits of the subsequent years was limited to eight years as against no such limit prescribed in the pre-amended provisions. As a result of this amendment proposed in the Finance (No.2) Bill 1996, it was apprehended that the same will cause great hardships to the assessees. During the course of discussion on General Budget, a number of Members of Parliament expressed their apprehension that this proposed amendment would adversely effect the growth of the industry and in order to all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The limitation of eight years shall start from the assessment year 1997-98. 6. A perusal of the aforesaid Circular issued by the CBDT, further makes it clear that the unabsorbed depreciation allowance of assessment year 1996-97 has to be added to the amount of allowance for depreciation of assessment year 1997-98 and the same having been deemed to be considered as the depreciation allowance for assessment year 1997-98, the assessee will be entitled to set off the same against business income or income under any other head for assessment year 1997-98. Under section 119, the CBDT has power, inter alia, to tone down the rigour of the law and ensure a fair enforcement of its provisions by issuing Circulars in exercise of its statutory powers under section 119 which are binding on the authorities in the administration of the Act. This power is given to the CBDT for the purpose of just, proper and efficient management of work of assessment and in public interest. It is a beneficial power given to the Board for proper administration of fiscal law so that undue hardship may not be caused to the assessee and the fiscal laws may be correctly applied. In the case of UCO Bank v. CIT [1999] 237 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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