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TMI Blog2017 (5) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals is whether the unabsorbed depreciation, which remained to be adjusted beyond Assessment Year 2001-02, be allowed to set off in perpetuity or the maximum period is 8 years. For the sake of convenience, the facts relating to Assessment Year 2007-08 are taken. 3. For Assessment Year 2007-08, in respect of the assessee, by order dated 11.12.2009 the assessment was finalized u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") determining the income of assessee as NIL. However, subsequently the Assessing Officer noticed from the Audit report that a sum of Rs. 2,30,23,769/- as the unabsorbed depreciation claimed by the assessee relates to the period upto 1999-2000 and a sum of Rs. 48,56,733/- pertained to Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of Hon'ble Gujarat High Court in the case of General Motor India, 257 CTR 123 that any unabsorbed depreciation available to an assessee on 1.4.2002 will be dealt with in accordance with the provisions of Sec. 32(2) of the Act (as amended by the Finance Act, 2001) and was available for carry forward and set off against the profits & gains of subsequent years without any limit whatsoever. 5. Challenging the said finding of ld. CIT(A), Revenue is in appeal before us urging that the issue of carry forward of unabsorbed depreciation beyond 8 years was a mistake apparent from the record, as such available to the Assessing Officer for rectification u/s 154 of the Act and the ld. CIT(A) was wrong in holding that any unabsorbed depreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the category of 'mistake apparent from record', therefore, that should not have been dealt with u/s 154 of the Act. The ld. CIT(A) accepted the same and while following the binding precedents, allowed such a contention of the assessee. Hon'ble Rajasthan High Court in the case of Historic Resort Hotels (supra) held that whether or not the amendment to Sec. 32 of the Act, which is relevant for our purpose, has prospective or retrospective effect on the application of the current year's depreciation and unabsorbed business loss and depreciation for the purpose of computation of income tax, is a disputed question of law and the Hon'ble Supreme Court in the case of T.S. Balram vs Wockhardt Brothers (supra) and Macco Industries Ltd. (supra) h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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