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TMI Blog2013 (5) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 263 of the Act. 3. Vide ground No. 2 the assessee contends that consequent to the amendment by the Finance Act 2001, the assessee is entitled to claim set off of unabsorbed depreciation relating to A.Ys. 1995-96, 1998-99, 2000-01 & 2001- 02. In the event of not accepting the aforementioned claim the assessee company contends that brought forward business losses of earlier years ought to have been set off of against the sale of business asset. 4. Similarly in Ground No.4 it contends that learned Commissioner of Income Tax erred in not allowing set off of unabsorbed depreciation against capital gain of A.Y. 2007-08 by overlooking the fact that the assessee became a sick industrial company from A.Y. 2000-01 and hence entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time but subsequent to the aforementioned Judgement Hon'ble Gujarat High Court had taken a view that intention of the Legislature was to allow unabsorbed depreciation allowance for an indefinite period of time since it was for enabling the industry to conserve sufficient funds to replace plant and machinery and, bearing in mind the intention of incentive, restriction of 8 years was dispensed with by an amendment. Subsequent to the decision of Hon'ble Gujarat High Court, ITAT "K" Bench, Mumbai in the case of Hindustan Unilever Ltd. (22 ITR 737) followed the decision of Hon'ble Gujarat High Court in preference to the decision of the Special Bench; since there is no contrary decision of any other High Court. Learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 on merits, as has been agreed by learned counsel for the assessee, Ground No.1 is deemed to have been decided against the assessee and in favour of the revenue. Ground No. 3&4 are academic in nature, since they are to be considered only in the event of holding that the assessee is not entitled to carry forward and claim set off of unabsorbed depreciation beyond a period of 8 years whereas, we have already decided ground No. 2 that the assessee is entitled to claim set off of unabsorbed depreciation; Hence ground No. 3 & 4 are academic in nature which need not be considered at this stage. 9. In the result, as pronounced in the open court, appeal filed by the assessee-company is treated as partly allowed. Order has been pronounced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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