9911796707
TMI Blog2015 (1) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... siness loss and unabsorbed depreciation loss which has to be carried forward for subsequent years has been quantified in the order passed u/s.143(3) dated 31-12-2008 for A.Y. 2006-07 and since the AO has simply followed that order while giving set off of unabsorbed depreciation loss for the A.Y. 2007-08, therefore, the order in our opinion cannot be said to be erroneous. Thus it is not a fit case for assuming jurisdiction u/s.263 of the I.T. Act. - Decided in favour of assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the assessment order is erroneous as well as prejudicial to the interest of the revenue. He, therefore, setaside the issue to the file of the AO with a direction to pass the order afresh after giving due opportunity of being heard to the assessee. The relevant observation of the Ld. CIT at paras 4.1 to 4.4 of the order read as under : "4.1 I have gone through the facts of the case. It is trite law, as propounded by the Apex Court in the case of Malabar Industrial Co.Ltd. reported in 243 ITR 83, that where the Assessing Officer has taken a 'possible view' which is not unsustainable in law or assumed incorrect facts or law, the CIT would not have jurisdiction u/s 263 to substitute his view which is different from that of the Assessing Officer. However, where there is no application of mind by the Assessing Officer, the Commissioner of Income Tax can assume jurisdiction u/s 263, if on the basis of records available, the Commissioner of Income Tax comes to the conclusion that the order of the Assessing officer is erroneous and prejudicial to the interest of revenue. 4.2 The assessment for the year under consideration was completed, assessing total loss at ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rprises vs Addl. CIT 99 ITR 375(Del.) (ii) CIT vs Emery Stone Mfg Co. 213 ITR 843(Raj.) (iii) Duggal & Co. vs CIT 220 ITR 456(del.) (iv) Thermal System(Hyd.) Pvt. Ltd. vs. ACIT Income Tax Act 270(H) 2006 dtd.15.2.2008. As regards the assessee's contention that the issue is debatable, it is pertinent to mention that there is no debate on this legal position, as the same is as per the provisions of Income Jax Act. Reliance is also placed on the decision of High Court of Gujarat in the case of CIT Vs MM Khambhatwala, reported in 198 ITR 144(GUJ), where it is held by the Gujarat High Court that, the CIT is entitled to revise the erroneous and prejudicial order passed by ITO even in a case where issue was debatable. 4.4 The Assessing Officer has thus without any application of mind allowed excess set off of depreciation amounting to ₹ 87,08,64,394/-. The assessment order framed is clearly erroneous and prejudicial to the interest of revenue on this issue and it is thus set aside. Subject to the above discussion, the assessment order passed by the A.O is set aside to be passed afresh, after giving an opportunity to the assessee of being heard." 3. Aggrieved with such orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion loss. He accordingly submitted that the order passed by the CIT u/s.263 has to be quashed. Further, referring to the order of the CIT(A) dated 18-12-2014 for the A.Y. 2007-08 he submitted that when the AO passed the order u/s.143(3)/263 disallowing depreciation of ₹ 87,08,64,394/- the Ld.CIT(A) following the decision of Hon'ble Gujarat High Court in the case of General Motors India Pvt. Ltd. vide Special Civil Application No.1773/2012 dated 23-08-2012 has given relief to the assessee. He accordingly submitted that the order passed u/s.263 should be quashed. 5. The Ld. Departmental Representative on the other hand while supporting the order of the Ld.CIT invoking jurisdiction u/s.263 submitted that since the AO has passed the order u/s.143(3)/263 disallowing the depreciation as per the order of the CIT passed u/s.263 and since the Ld.CIT(A) has already deleted the said disallowance, therefore, this appeal filed by the assessee becomes infructuous. 6. We have considered the rival arguments made by both the sides, perused the orders of the authorities below and the paper book filed on behalf of the assessee. We have also considered the various decisions relied on by both ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
