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2014 (3) TMI 1080 - AT - Income TaxReopening of assessment - whether issue was subject matter of rectification u/s 154? - disallowance of the claim with respect to the carried forward of unabsorbed depreciation - Held that:- On the issue of reopening, it is true that the Assessing Officer in his order u/s 154 dated 09.11.2009, was concerned with the processing of return u/s 143(1). The request of the assessee was, as extracted in order u/s 154 was as follows : “In reply to the above demand notice the assessee filed a petition u/s 154 stating that while filing the return electronically an error has crept in uploading E-return in as much carry forward loss to the tune of ₹ 4,27,99,748/- which is available has erroneously not mentioned in the schedules and accordingly the return was processed by not taking in to account of Brought forward of losses of previous years and requested to rectify the mistake.” This demonstrates that the issue was not subject matter of rectification u/s 154. The order passed u/s 143(3) on 09.12.2009, the A.O. referred to this rectification u/s 154 at para 2.1 as observed as follows : “Since the claim of the assessee-company was in order as verified from the records an order u/s 154 of the Act was passed on 09.11.2009 wherein the income was determined at NIL after setting-off brought forward losses.” It appears, that the Assessing Officer has not examined the legal aspect of this issue. As no express opinion has been stated on this issue and we hold that the Assessing Officer has not formed an opinion in the original order passed u/s 143(3). When the Assessing Officer has not formed an opinion during the course of original assessment proceedings, reopening cannot be said to be a change of opinion. the Hon’ble Gujarat High Court has considered an identical issue in the case of General Motors India Pvt. Ltd. v. DCIT (2012 (8) TMI 714 - GUJARAT HIGH COURT) and adjudicated the matter in assessee favour stating 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, thus 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. And when a decision of a High Court on the point of law is available, then that interpretation has to be followed in preference to a decision of the Tribunal, even if it is a Special Bench decision of the Tribunal. - Decided in favour of assessee
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