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2016 (6) TMI 1130 - ITAT KOLKATA

2016 (6) TMI 1130 - ITAT KOLKATA - TMI - Carry forward of unabsorbed depreciation - Held that:- As relying in assessee’s own case for AYs 2004-05 and 2005-06 wherein held 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. And once the Circular No. 14 of 2001 clarified that the restriction of 8 years for carry forward and set off of unabsorbed depreciation .....

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Member) For the Appellant : Niraj Kumar, CIT, DR For the Respondent : Krishna Jaiswal, AR ORDER M. Balaganesh (Accountant Member) This appeal by assessee is arising out of order of CIT(A)-XII, Kolkata vide Appeal No. 522/CIT(A)-XII/11(1)/10-11 dated 12.03.2013. Assessment was framed by ITO, Ward-11(1), Kolkata u/s. 143(3) of the Income tax Act, 1961 (hereinafter referred to as the Act ) for AY 2007-08 vide his order dated 31.12.2010. 2. The sole issue involved in this appeal of revenue is as ag .....

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ed in allowing the carry forward of unabsorbed depreciation for the AY. 1994-95 to 1999- 2000 amounting ₹ 23,58,69,982/- in view of the amendment by the Finance Act, 2001 with effect from 01.04.2002 substituting the old Section 32(2) of the I.T. Act, 1961. 3. That on the facts and circumstances of the case and also in view of amended provision of law, the unabsorbed depreciation for assessment year 1994-95 to 1996-97 was eligible for set off upto AY. 2004-05 and from assessment year 1997-9 .....

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der has given finding that the unabsorbed depreciation for AYs 1994-95 to 1997-98 was eligible for set off up to AY 2004-05 and that for AYs 1997-98 to 2001-02 was eligible for set of only against the income under the head profits and gains of business or profession for a period of more than eight assessment years. On first appeal, the Ld. CIT(A) by placing reliance on the order passed by him for the AYs 2004-05 and 2005-06 in assessee s own case allowed the claim of the assessee. Aggrieved, the .....

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t - 16. Before CIT(A) the Assessee relied on the decision of the Gujarat High Court in the case of.General Motors India Pvt. Ltd. -vs.- DCIT (Guj.) (2013) 354 ITR 244 (Guj.) wherein, the Hon'ble Gujarat High Court has held that unabsorbed depreciation from AY. 1997-98 up to AY. 2001-02 got carried forward to AY. 2002-03 and became part thereof and it came to be governed by the provisions of sec. 32(2) as amended by the Finance Act, 2001 and were available for carry forward and set off agains .....

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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. " 17. It was pointed out that the above decision in the case of General Motors India Pvt. Ltd. (supra) has been followed by the H .....

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further made to the decision of the Hon'ble Jurisdictional Tribunal in the case of Bengal Tea & Fabrics Limited (ITA No 467/koll2012) dated 26th July, 2012 for the AY 2008-09, wherein the question arose as to whether in view of the amended provisions of section 32(2) of the Act the assessee would be entitled to set off the unabsorbed depreciation for the AYs 1997-98 and 1998-99 against the income of the AY 2008-09 (i.e. beyond assessment years 2004-05/2005-06). The Hon'ble Kolkata T .....

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g officer had taken a correct view of the amended provisions of the section 32(2) of the Act to allow the assessee to carry forward the depreciation allowance for the previous year 2004-05 and 2005-06. Reliance was also placed on the decision of the Hon'ble Karnataka High Court in the case of Cooperative Milk producers Federation Ltd. (supra) held as under: " ..... the provision u/s 32(2) of the Act which came to be introduced limiting/extending the period from eight years for an unlimi .....

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bed depreciation of assessment year 1994-95 to 1996-97 was to be claimed / set off upto assessment year 2004-05 only it could not be carried forward and set off beyond that. During the appellate proceeding the A.R. has submitted a copy of the order of the jurisdictional Hon'ble Kolkata Tribunal in the case of Bengal Tea & Fabrics Ltd. Vs. DClT Cir-4, Kolkata (ITA No. 467/Kol/2012 dt. 26-07-2012) wherein the Tribunal has categorically given its finding that the assessee company would be e .....

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