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TMI Blog2017 (3) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... lar/same deduction of alleged accumulated unabsorbed depreciation of earlier years, which came to be allowed by AO while computing the book profit for the purpose of Section 115JB of the I.T Act. It was not the case on behalf of the Assessing Officer and even before this Court, it is not the case of the Revenue, that there are change in circumstances with respect to the year under consideration and with respect to A.Y 2009-2010 and/or A.Y 2011-2012. Thus in absence of any change in the circumstances, it was not open for the Assessing Officer to take a different view in the subsequent assessment years. SEE M/s. Dalmia [2015 (9) TMI 1247 - SUPREME COURT] wherein dismissed/disposed of the appeal preferred by the Revenue on the ground that consistency does demand that there being no change in the circumstances, the income for the year under consideration will have to be treated business income, as per the previous years. - Decided in favour of assessee - TAX APPEAL No. 37 of 2017 With TAX APPEAL No. 118 of 2017 - - - Dated:- 17-2-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE APPELLANT : Mr SUDHIR M MEHTA, ADVOCATE FOR THE OPPONENT : Mr JP SHAH, Sr Advocate with Mr M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the learned Tribunal in ITA No. 1469/Ahd/2015 for A.Y 2010-2011 by which, the learned Tribunal has allowed the said Appeal preferred by the assessee by quashing and setting aside the order passed under Section 143 (3) read with Section 263 of the Act by which, the Assessing Officer disallowed a similar deduction claimed under Section 115JB of the Act for A.Y 2010-2011. 3. For the sake of convenience, the facts emerging in Tax Appeal No. 37 of 2017 for A.Y 2012-2013 are narrated hereunder : 3.1 That the assessee company is engaged in the business of manufacturing of Polyester chips and Polyester Yarn and property development. The assessee filed its return of income for Assessment Year 2012-2013. That, the assessee claimed deduction of alleged accumulated unabsorbed depreciation of earlier years amounting to ₹ 27,36,90,817/- while computing the book profit of ₹ 27,51,00,602/- for the purpose of Section 115JB of the Act. The case of the assessee was selected for scrutiny assessment. A notice under Section 143 (2) of the Act was issued on 8th August 2013, which was served upon the assessee. According to the Assessing Officer, the assessee had not calculated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee and disallowed deduction of alleged accumulated unabsorbed depreciation of earlier years amounting ₹ 27,36,90,817/- , while computing the book profit for the purpose of Section 115JB of the Act. 4. Feeling aggrieved and dissatisfied with the action of the Assessing Officer, the assessee preferred appeal before the learned CIT [A]. The learned CIT [A] dismissed the appeal, confirming the action of the Assessing Officer by further observing that the principle of res judicata is not applicable in Income-tax proceedings, if the Assessing Officer is able to point out specific circumstances which can demonstrate that in the earlier years it was contrary to the law, he was justified to take a different view in the subsequent year. On merits also, the learned CIT [A] observed that once unabsorbed depreciation/loss were forming part of the profit loss account, such debit balance or loss of credit balance was available in rehabilitation account, then nothing remains with the assessee in the books of account which can be claimed as reduction, while computing the book profit for the purpose of Section 115JB of the I.T Act. 5. Feeling aggrieved and dissatisfied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned finality, therefore, it will not be open for the subsequent Assessing Officer to take a contrary view. It is submitted that therefore, as observed by the Hon'ble Supreme Court, in light of the aforesaid judgment, the appeal preferred by the assessee can be disposed of on the ground of consistency; more particularly when there are chain of circumstances viz ., Assessment Years 2009-2010 and 2011-2012. 7.1 Making above submission, it is requested by learned counsel appearing on behalf of the assessee to dismiss the present Tax Appeals. 8. We have heard learned advocates appearing for the respective parties at length. At the outset, it is required to be noted that in A.Y 2012-2013, the Assessing Officer disallowed deduction of alleged accumulated unabsorbed depreciation of earlier years of ₹ 27,36,90,817/- while computing the book profit of ₹ 27,51,00,602/- for the purpose of Section 115JB of the I.T Act. The same came to be confirmed by the learned CIT [A], which has been set-aside by the learned Tribunal on the ground that in the earlier years ie. , Assessment Years 2009-2010 and 2011-2012, similar deduction was allowed and the book profit was according ..... X X X X Extracts X X X X X X X X Extracts X X X X
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