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TMI Blog2016 (3) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation 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. And 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 2001-002 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner by letter dt. 17.09.2014 and in view of the facts and in the circumstances such order u/s. 263 may kindly be quashed / cancelled. 3. For that without prejudice and even otherwise, the Ld. CIT is wholly unjustified in passing order u/s 263 ignoring the decisions of different High Courts and there being no contrary decision, the Ld. CIT is bound to follow such decisions of different High Courts and in view of the facts and in the circumstances the Ld. CIT may kindly be directed accordingly. 4. For that in view of the facts and in the circumstances and the matter having been fully settled in favour of your appellant by decisions of Hon'ble ITAT, Kolkata Benches for the AYs 2007-08 2008-09 and such decisions having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the interest of Revenue on account of allowing the unabsorbed depreciation for the assessment years 2000-01 and 2001-02 to be carried forward for the subsequent assessment years. 2.1 The facts of the case are that the assessee in the present case is limited company and engaged in the business of manufacturer of tea, cloth and yarn. The AO framed the assessment for the year under consideration u/s 143(3) of the Act after making certain addition to the total income of the assessee. However Ld. CIT found the order of the AO erroneous in so far as it is prejudicial to the interest of revenue and exercised his power u/s 263 of the Act by issuing a show cause notice. The Ld. CIT treated the assessment order erroneous by observing that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as it stood prior to introduction of Finance Act, 2001, w.e.f. 01.04.2002 states that if the unabsorbed depreciation cannot be wholly set off, the amount not so set off shall be carried forward to the following AYrs, not being more than 8 A.Yrs. immediately succeeding the AY for which the depreciation allowance was first computed. As such, the AY to be reckoned is the AY for which the depreciation allowance was first computed which in the instant case is AY 2000-01 2001-02 and there is no clear cut provision in the Act to carry forward unabsorbed depreciation beyond 8 years to club it with the de allowance for AY 2002-03 and allow a fresh claim of depreciation for unlimited period thereafter. I am, therefore, setting aside the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001 and not by the provisions of section 32(2) as it stood before the said amendment. Had the intention of the Legislature been to allow the unabsorbed depreciation allowance worked out in A.Y 1997-98 only for eight subsequent assessment years even after the amendment of section 32(2) by Finance Act, 2001 it would have incorporated a provision to that effect. However, it does not contain any such provision. Therefore, the provisions of section 32(2) as amended by Finance Act, 2001 would allow the unabsorbed depreciation allowance available in the A.Y 1997-98, 1999-2000, 2000-01 an 2001-2002 to be carried forward to the succeeding years, and if any unabsor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensed with, the unabsorbed depreciation from A.Y 1997-98 upto the A.Y 2001-002 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. 4. We find that Hon'ble Gujarat High Court has given relief to assessee on the same line of facts in the case of General Motors India (P) Ltd. (supra). We are also relying in the order of the assessee in assessee s own case in ITA No. 1745/Kol/2011 in A Bench dated 28.04.2014 for A.Y. 07-08 where the Tribunal has held as under:- 5. We find that admittedly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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