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TMI Blog2024 (12) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... tation for setting off the unabsorbed depreciation when section 32(2) - HELD THAT:- This issue is covered by a decision of this Court in Tamil Nadu Small Industries Corporation Limited [ 2021 (7) TMI 849 - MADRAS HIGH COURT] decided against the Revenue and in favour of the assessee as held 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was incurred by the assessee according to the method of accounting regularly employed by him) only in computing the income referred to in section 28 of that previous year in which such sum is actually paid by him : Provided that nothing contained in this section shall apply in relation to any sum which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return. 3.The discussion relating to disallowance of provision under Section 43B(f) at paragraph 5 of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of the case, the Hon'ble tribunal was right in fixing eight years limitation for setting off the unabsorbed depreciation when section 32(2) of the Income Tax Act does not prescribe any limitation? (ii) Whether on the facts and in the circumstances of the case, the reopening of the assessment under section 147 of the Income Tax Act, 1961 is not hit by the principle of merger theory wherein the original assessment order dated 22.09.2010 was merged with the order passed by the Commissioner of Income Tax (Appeals) in ITA No. 408/2011-12/AIV dated 04.11.2011? 6.As far as the first question of law is concerned, the same is covered by a decision of this Court in The Commissioner of Income Tax V. Tamil Nadu Small Industries Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. ............ 4. Having heard the learned counsel for parties and having perused the documents on record, we do not find any error in the order of the Appellate Tribunal. Gujarat High Court in the case of General Motors India (P.) Ltd. (supra) had considered somewhat similar issue, of course in the backdrop of the assessee's challenge to a notice of reopening of the assessment. The Gujarat High Court had held and observed as under- 38 Therefore, it can be said that, current depreciation is deductible in the first place from the income of the business to which it relates. If such depreciation amount is larger than the amount of the profits of that business, then such excess comes for absorption from the profits and gains from any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions 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 counsel on either side, following the ratio laid down in [2021] 127 taxmann.com 805 (Madras) [Harvey Heart Hospitals Ltd. Vs. Assistant Commissioner of Income Tax] and [2020] 122 taxmann.com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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