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TMI Blog2013 (4) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year 2004- 05 in exercise of powers u/s 263 of the Act noticed that the Assessing Officer passed an order u/s 154 on 24-9-2009 determining the brought forward losses and unabsorbed depreciation for various years i.e., from asst. years 10090-91 to 2003-04 and giving effect to the same, determined the total income for assessment year 2004-05. The Assessing Officer also determined the unabsorbed depreciation to be carried forward for the assessment year 1996-97 to Rs. 8,74,034/-. Subsequently, in another application dated 21-10-2009 filed by the assessee u/s 154, the Assessing Officer passed another order u/s 154 dated 17-3-2010 wherein he worked out the brought forward business loss and unabsorbed depreciation with respect to earlier years and also worked out the total income for the year under consideration. In the order dated 17-3-2010, the Assessing Officer determined the unabsorbed depreciation for the assessment year 1996-97 at Rs. 55,52,124/- for the purpose of carrying forward. The CIT was of the view that unabsorbed depreciation to be carried forward with respect to assessment year 1996-97 gets lapsed in the asst. year 2004-05. As according to him, unabsorbed depreciation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t u/s 154 of the Act. Accordingly, the CIT modified the order dated 17-3-2010 passed u/s 154 of the Act by directing the Assessing Officer to treat the unabsorbed depreciation relating to the asst. year 1996-97 to be carried forward amounting to Rs. 55,52,124/- as nil. 6. Being aggrieved of the aforesaid order, the assessee is before us by raising the following grounds:- 1. Your appellant submits that the CIT, AP-1, Hyderabad erred in law and facts of the case while passing the order u/s 263 of Income-tax Act, denying the carry forward and set off of unabsorbed depreciation of Rs. 93,63,019/- allowed vide modification order of Dy. CIT, Cir-1(3), Hyderabad u/s 154 of Income-tax Act dated 17-3-2010. 2. The CIT, AP-! Hyderabad erred in law aned facats of the case in stating in his order u/s 263 of the Income-tax Act that allowance of set off of unabsorbed depreciation was debatable and contentious issue whereas the same was allowed as consequence to Income-tax Appellate Tribunal's order in the own case of the appellant for assessment year 1996-97. 3. The CIT AP-1, Hyderabad erred in law and facts of the case while passing the order u/s 263, relying on the decision of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as asst. year 2006-07 is concerned, the lr AR relying upon the decision of Hon'ble Gujarat High Court in case of General Motors India Pvt. Ltd. V/s. DCIT (supra) submitted that since the issue is squarely covered by the decision of the Hon'ble Gujarat High Court, the order passed u/s 154 of the Act cannot be considered as erroneous and prejudicial to the interests of the revenue. 8. The learned Departmental Representative also filed a written submissions wherein it is submitted that the issue of unabsorbed depreciation is highly debatable. Different Benches of Income-tax Appellate Tribunal have taken contradictory views relating to carrying forward of unabsorbed depreciation to subsequent years i.e. upto 8 assessment years or beyond. It was submitted that due to divergent views of different benches of Income-tax Appellate Tribunal the issue was considered by the Special Bench in case of CIT V/s. Times Guarantee Ltd. (supra) wherein it was held that unabsorbed depreciation can be carried forward for a period of 8 years. The learned Departmental Representative in support of his contention relied upon the decision of the Income-tax Appellate Tribunal Calcutta Bench in case of ACIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forward for a period of 8 years. From the aforesaid facts, it is quite obvious that the issue with regard to carry forward of unabsorbed depreciation was a highly contentious and debatable issue which could not have been considered in a proceedings u/s 154 of the Act which is only meant for rectifying mistake apparent on the face of the record. The learned AR could not demonstrate before us that the mistake which was subject for rectification u/s 154 of the Act was apparent from the face of the record. No material was placed before us to prove the fact that there was any mistake in the assessment order passed u/s 143(3) of the Act which is apparent on the face of the record. 10. So far as the decision of Hon'ble Gujarat High Court in case of General Motors India Pvt. Ltd. V/s. DCIT (supra) is concerned, the said judgment was delivered on 23-8-2012 that is much after the order u/s 154 of the Act was passed by the Assessing Officer and the order u/s 263 of the Act was passed by the CIT and was not available either before the Assessing Officer or before the CIT. Hence, the order passed by the CIT u/s 263 cannot be said to be invalid in view of the aforesaid judgment of Hon'ble Gujara ..... X X X X Extracts X X X X X X X X Extracts X X X X
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