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TMI Blog2021 (7) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Mr. Justice M.Duraiswamy And Hon'ble Mrs.Justice R.Hemalatha For the Appellant : Mr.M.Swaminathan Senior Standing Counsel assisted by Mrs.V.Pushpa Junior Standing Counsel For the Respondent : Mr.A.Thiagarajan, Senior Counsel for Mr.S.Ramesh Kumar JUDGMENT M.DURAISWAMY, J. Challenging the order passed in I.T.A.No584/Mds/2016 in respect of the Assessment Year 2008-09 on the file of the Income Tax Appellate Tribunal, Chennai, A Bench, the Revenue has filed the above appeal. 2.The assessee Company is a wholly owned Company of Government of Tamil Nadu. It filed its return of income for the Assessment Year 2008-09 on 30.09.2008, declaring taxable income of ₹ 11,04,22,407/- after setting off loss from business of ₹ 10,60,57,641/- with the long term capital gains. The case was taken up for scrutiny and assessment under Section 143(3) was completed on 22.09.2010 with assessed income of ₹ 58,48,39,921/- by making additions. The case was re-opened by issuing notice under Section 148 on 08.03.2013 for the reason that the unabsorbed depreciation pertains to Assessment Years 1997-98, 1998-99 and 1999-2000, was allowed in the assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandated under the provisions of section 32 of the Act? 4.The short issue, which falls for consideration, is as to whether, in the facts and circumstances of the case, the Tribunal was right in permitting the assessee to carry forward the depreciation loss pertaining to the assessment year 1997-98 to the present assessment year namely 2006- 07, which is beyond the eight year period mandated under the provisions of section 32 of the Act. 5.The revenue is before us by referring to the decision of the High Court of Calcutta in the case of Peerless General Finance Investment Co. Ltd. v. CIT [2016] 73 taxmann.com 257/242 Taxman 209 and submitting that an identical issue was considered by the Calcutta High Court wherein the assessee was not granted relief. It is further submitted that the said decision of the Calcutta High Court was tested for its correctness by the Hon'ble Supreme Court and the special leave petition filed against the judgment of the Calcutta High Court was dismissed in the decision in Peerless General Finance Investment Co. Ltd. v. CIT [2016] 73 taxmann.com 258/242 Taxman 173/380 ITR 165 (SC). 6.After elaborately hearing the learned Senior Standing Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd is for the assessment year 1997-98. 10. The proper manner, in which, the modification has to be understood, is to the effect that from the assessment year 2002-03, if the eight years' period was not lapsed, then the assessee would be entitled to carry forward the loss without any restriction on the time limit. This aspect has been dealt with elaborately in the decision of the Division Bench of the Gujarat High Court in the case of General Motors India (P.) Ltd. v. Dy. CIT [2012] 25 taxmann.com 364/210 Taxman 20/[2013] 354 ITR 244 wherein the relevant portions are as follows : 37.The CBDT Circular clarifies the intent of the amendment that it is for enabling the industry to conserve sufficient funds to replace plant and machinery and accordingly the amendment dispenses with the restriction of 8 years for carry forward and set-off of unabsorbed depreciation. The amendment is applicable from assessment year 2002-03 and subsequent years. This means that any unabsorbed depreciation 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 not by the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for such succeeding year and is deemed as part thereof. If, however, there is no current depreciation for such succeeding year, the unabsorbed depreciation becomes the depreciation allowance for such succeeding year. We are of the considered opinion that any unabsorbed depreciation 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. 2001-02 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. 11. A similar issue was considered by a Division Bench of the Bombay High Court in the case of CIT v. Bajaj Hindustan Ltd. [IT Appeal Nos. 134 to 136 and 140, 141 and 148 of 2018, dated 13-6- 2018] following the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCH 227, the issue was considered in favour of the assessee after referring to the decision of the Division Bench of the Gujarat High Court in the case of General Motors India (P.) Ltd., wherein the relevant portions read thus : 3. The Revenue carried the matter in appeal. The Appellate Tribunal dismissed the appeal of the Revenue making the following observations- 16. We have observed that the current year's depreciation is allowed to be set-off against the income from business as well as against the other heads of income and unabsorbed depreciation in carry forward and become part of the depreciation of the subsequent year and the total depreciation becomes current year's depreciation as per section 32(1) of the Act, which is allowed to be set-off against the income under any head of income. As per the provisions of section 32(2) of the Act r.w.s. 70, 71 and 72 of the Act, it becomes very clear that the total depreciation comprising of the depreciation of the relevant assessment year along with the unabsorbed depreciation of the earlier years becomes the total current year's depreciation which is allowed to be set off against income under any head of income inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 asst. yr. 1997-98 up to the asst. yr. 2001- 02 got carried forward to the asst. yr. 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. 14. In our considered view, the above decisions will clearly enure to the benefit of the respondent - assessee. 15. Accordingly, the above tax case appeal is dismissed and the substantial question of law is answered against the Revenue. No costs. 5.Mr.K.Ravi, learned counsel appearing for the respondent submitted that in view of the ratio laid down by the Hon'ble Division Bench of this Court in the judgments in [2021] 127 taxmann.com 805 (Madras) and [2020] 122 taxmann.com 212 (Madras) , cited supra, the above appeal may be dismissed. 6.Having regard to the submissions made by the learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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