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TMI Blog2016 (6) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... reof, 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. - I.T.A No. 2110/Kol/2013 - - - Dated:- 1-6-2016 - N. V. Vasudevan (Judicial Member) And M. Balaganesh (Accountant Member) For the Appellant : Niraj Kumar, CIT, DR For the Respondent : Krishna Jaiswal, AR ORDER M. Balaganesh (Accountant Member) This appeal by assessee is arising out of order of CIT(A)-XII, Kolkata vide Appeal No. 522/CIT(A)-XII/11(1)/10-11 dated 12.03.2013. Assessment was framed by ITO, Ward-11(1), Kolkata u/s. 143(3) of the Income tax Act, 1961 (hereinafter referred to as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the issue of disallowance of carry forward of set off of unabsorbed depreciation of ₹ 23,58,69,982/-, the Ld. AO in his assessment order has given finding that the unabsorbed depreciation for AYs 1994-95 to 1997-98 was eligible for set off up to AY 2004-05 and that for AYs 1997-98 to 2001-02 was eligible for set of only against the income under the head profits and gains of business or profession for a period of more than eight assessment years. On first appeal, the Ld. CIT(A) by placing reliance on the order passed by him for the AYs 2004-05 and 2005-06 in assessee s own case allowed the claim of the assessee. Aggrieved, the revenue is in appeal before us. 4. The Ld. DR vehemently relied on the order of the AO. 5. The Ld. AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. 17. It was pointed out that the above decision in the case of General Motors India Pvt. Ltd. (supra) has been followed by the Hon'ble Gujarat High Court in the case of CIT -vs.- Gujarat Themis Biosyn Ltd. (2014) 44 taxmann.com 204 (Guj.). In this case the Hon'ble High Court upheld the view taken by the ITAT wherein, following the decision of the Hon'ble Gujarat High Court in the case of General Motors Ltd. (supra), it was held that carry forward of unabsorbed deprec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: ..... the provision u/s 32(2) of the Act which came to be introduced limiting/extending the period from eight years for an unlimited period. Further, carrying forward of unabsorbed depreciation for every year has to be calculated indivi ally based on audit report and to arrive at the exact amount to be carried forward. 19. The CIT(A) allowed the claim of the Assessee. The following were the relevant observations of the CIT(A): 8 . Appeal on ground no. 4 and 5 are against the disallowance of carry forward of unabsorbed depreciation of ₹ 8,77,48,743/-. The A.O. in his assessment order has clearly mentioned that unabsorbed depreciation of assessment year 1994-95 to 1996-97 was to be claimed / set off upto asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee relied on the order of the CIT(A). 22. We have considered the rival submissions and are of the view that in the light of the decision of the Hon ble Gujarat High Court in the case of General Motors India Pvt. Ltd. (supra) which has the effect of overruling the decision of the Special Bench in the case of Times Gurantee (supra) and also on the basis of other decisions referred by the Assessee before CIT(A), the order of the CIT(A) does not call for any interference. Accordingly, the appeals by the revenue are dismissed. Respectfully following the same, we hold that the order passed by Ld. CIT(A) does not call for any interference. Accordingly, the grounds raised by the revenue are dismissed. 7. In the result, the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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