TMI Blog2018 (2) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... e Coordinate Bench in assessee’s own case we find that similar issue had come up before the Tribunal in A.Y. 2009-10 and the Coordinate Bench has decided this issue in favour of the assessee allowed setting off of depreciation. – Decided against revenue. - ITA No. 5387/Mum/2016 - - - Dated:- 21-2-2018 - Shri C.N. Prasad, Judicial Member And Shri A.L. Saini, Accountant Member Appellant by : Shri V. Vidhyadhar Respondent by : Shri Sunil Hirawat ORDER Per C. N. Prasad, JM This appeal has been filed by the Revenue against the order of the CIT(A)-14, Mumbai dated 27.06.2016 for A.Y. 2011-12. 2. The first ground of appeal raised by Revenue is that the CIT(A) erred in deleting the disallowance made under Section 43B of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is squarely covered by the decision of the Hon'ble Jurisdictional High Court Ghatge Patil Transport Ltd. (supra) wherein the Hon'ble High Court held as under: - The question arising, therefore, is (a) whether the Tribunal was right in ignoring the distinction between the employees contribution and employer s contribution and whether the decision of the Hon'ble Supreme Court in the case of CIT v. Alom Extrusions Pvt. Ltd. reported in (2009) 319 ITR 306 (SC) would apply only in the cases of the employees contribution; and (b) whether the Tribunal was right in holding that the payment of the employees contribution is subject to the provisions of section 43B would lead to the inclusion of the employers contribution as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 32(2) of the Act w.e.f.1-4-2002. As per unamended provisions the unabsorbed depreciation of earlier years could be carried forward to a maximum of eight assessment years and set off against income of those eight assessment years. After lapse of eight assessment years, no carry forward and set off was allowed. However, after amendment this condition of eight assessment years has been removed and unabsorbed depreciation is required to be considered as part of next / subsequent assessment years, depreciation and allowed as such. If there is no such income for adjustment of such unabsorbed depreciation, such unabsorbed depreciation has been allowed to be carried forward for subsequent assessment years without any restrictions of any years. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-03 and become part thereof', ii) It came to the governed by the provisions of Sec.32(2) as amended by Finance Act 2001 and was available for carry forward and set off against the profits and gains of subsequent years, without any limits whatsoever. The decision of Hon'ble Gujarat High Court in the case of General Motors P. Ltd. is subsequent to the decision of. ITAT Special Bench, Mumbai. However, while adjudicating the issue, the decision of ITAT Special Bench, Mumbai has not been considered by the Gujarat High Court. However, being a higher judicial forum / authority, the decision of Gujarat High Court is required to be followed. There is no any contrary decision of any other High Court on this issue. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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