TMI Blog2015 (12) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... tiles, there is no controversy that under the provisions of section 10B(6) read with section 32 of the Act, if any deduction for any relevant assessment years ending before 01.04.2001 has been given full effect then the same neutralizes the provision of section 32(2) of the Act. However, in the present case, while working out unabsorbed depreciation for AY 1997-98, the AO has considered incorrect facts and figures. The fact is that M/s. Zenith Textiles was approved under Special Scheme of Govt. of India as a 100% EOU only on 26.09.1997 and accordingly, assessee claimed deduction u/s. 10B of the Act in respect this unit for and from AY 1998-99. According to us, there being no claim made for deduction u/s. 10B of the Act in AY 1997-98, the un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he observation of Ld. CIT (A) which reads that provisions contained in section 10B(6) of Income Tax Act, 1961 does not mention that unabsorbed depreciation will not be carried forward only when deduction U/s 10B is claimed is opposed to his own observation wherein it is stated that Here the criterion is not based on claim of deduction U/s 10B but based on the undertaking being 100 % EOU on which deduction u/s. 10B has been claimed in any years. 2. That on the facts and in the circumstances of the case, Ld. CIT(A) is wrong and unjustified in holding unabsorbed depreciation of ₹ 7,67,01,019/- relatable to the unit M/s. Zenith Textiles for assessment year 1997-98 cannot be set off with the profit for assessment year 2004-05 even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO observed as under: Therefore, unabsorbed depreciation pertaining to assessment year 2000-01 or earlier years cannot be allowed to be carried forward and set off. Therefore, the amount of unabsorbed depreciation to be allowed to be carried forward for assessment year 1997-98 would be ₹ 1,21,17,053/- (Unabsorbed depreciation determined of ₹ 8,88,18,072/- minus unabsorbed depreciation not allowed to be carried forward relating to Zenith Textiles of ₹ 7,67,01,019/-. 7. And the amount of unabsorbed depreciation allowed to be carried forward for AY 1998-99 would be only ₹ 5,57,854/- (unabsorbed depreciation determined of ₹ 6,04,51,882/- minus unabsorbed depreciation, which related to Zenith Textiles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already been reduced by the assessee itself in the revised computation of income and therefore, the question of not allowing set off of such unabsorbed depreciation does not arise. I would like to take up this issue for the two assessment years separately. Assessment Year 1997-98 In respect of this assessment year if we look at the language of section 10B(6) it can be seen that according to this section depreciation in relation to any building, machinery, plant or furniture used for the purposes of the business of the EOU related to any previous year relevant to assessment year 2000-01 or before shall be treated as given full effect to for that assessment year itself and no depreciation shall be allowed to be carried forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Textiles was approved by Govt. of India as a 100% EOU on 26.09.1997 and assessee did not make any claim for deduction u/s. 10B of the Act for that assessment year i.e AY 1997-98. According to him, the restriction imposed u/s. 10B(6) of the Act so far as unabsorbed depreciation of ₹ 7,67,01,019/- cannot hold good as the assessee did not claim any deduction u/s. 10B of the Act in AY 1997-98 and the same can be verified from the computation sheet attached with the return of income. The assessee drew our attention to approval order of Govt. of India dated 26.09.1997 filed in the paper book along with computation sheet and return of income. We have gone through the approval granted by Assistant Development Commissioner, Cochin Export Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s appeal is allowed. 6. The appeal for AY 2004-05 in ITA No. 06/K/2011 is against the order of CIT(A) in not admitting the appeal as there was a delay in filing of appeal for an about 6 months and 19 days. For this, assessee has challenged that it was not allowed reasonable opportunity of being heard and for this following three grounds are raised: 1. That on the facts and in the circumstances of the case, Ld. CIT(A) is wrong and unjustified in holding that there is no evidence of sickness of the Accountant without allowing the appellant reasonable, adequate and effective opportunity to produce certificate of ill health. 2. That on the facts and in the circumstances of the case, Ld. CIT(A) is wrong in holding that the delay in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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