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2016 (10) TMI 1315 - AT - Income TaxSet off unabsorbed deprecation - As per AO under the old provision unabsorbed depreciation could be considered only for eight years - As per CIT (Appeals) amendment made by Finance Act, 2001 w.e.f. 01.04.2002 reinstated the old provision and according to him, the assessee was eligible for carried forward depreciation for the assessment year 1997-1998 that amended provisions would apply - HELD THAT:- In our opinion, the issue stand settled by virtue of jurisdictional High Court judgment in the case of CIT vs. Pioneer Asia Packing P. Ltd [2007 (11) TMI 285 - MADRAS HIGH COURT] as held Tribunal has rightly come to the conclusion that the assessee is entitled to the unabsorbed depreciation brought forward as on April 1, 1997, and could be set off against the business profits and in order to give effect to that finding, the case was remitted to the file of the Assessing Officer for verification as to how much depreciation was available up to April 1, 1997, that could be included in the income of the assessee. Accordingly, we are of the opinion that ld. Commissioner of Income Tax (Appeals) is justified in taking a view that assessee was eligible for carried forward deprecation for the assessment year 1997-1998. Addition u/s.43B (b) or u/s.40A(7)(b) - provision made for gratuity - HELD THAT:- As in the case of CIT vs. Common Wealth Trust (P) Ltd & Anr [2004 (4) TMI 51 - KERALA HIGH COURT] and CIT vs. Bechtel India (P) Ltd [2007 (11) TMI 2 - HIGH COURT , DELHI] had held that harmonious construction of Sec. 40A(7) (b) and Sec. 43B(b) of the Act could clearly indicate that the legislature never intended to take away the benefit conferred under clause (b) of Sec. 40A(7) of the Act through the provisions of Sec. 43B(b) . So far as additional depreciation is concerned, balance of additional depreciation remaining after the claim of 50% in one year could be allowed in succeeding year by virtue of judgment in the case of Rittal India Pvt. Ld [2016 (1) TMI 81 - KARNATAKA HIGH COURT]. We, therefore of the opinion that ld. Commissioner of Income Tax (Appeals) was justified in allowing the claim of the assessee in both years. Appeals of the Revenue stand dismissed.
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