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TMI Blog2018 (4) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... we adjudicate the ITA no. 1993/Ahd/2016 and its findings will be applicable to both the appeals. 4. The brief fact of the case is that the assessee has filed return of income declaring loss of Rs. 87,95,310/- on 29th Sep, 2009. The assessment was completed u/s. 143(3) of the act on 30th Nov, 2011 accepting the loss as per the return filed. Thereafter the assessing officer issued notice u/s. 148 of the act on 26th Feb, 2014 on the reasoning that assessee has carried forward the depreciation loss of Rs. 38,01,74,402/- beyond eight years. The assessing officer observed that as per provision of section 32(2), the depreciation loss cannot be carried forward beyond 8 years. Consequently, in the re-assessment order u/s 143(3) r.w.s. 147 of the act dated 14th August, 2014,the assessing officer has disallowed the claim of unabsorbed depreciation of assessment year 2002-2003 of Rs. 38,01,74,402/- 5. Aggrieved assesseee filed appeal before the ld. CIT(A). The ld. CIT(A) has allowed the appeal of the assessee. The relevant part of the decision of the CIT(A) is reproduced as under:- "6.2 Alongwith the contention and other case laws the appellant cited the judgement of the Hon'ble juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat " It is held that any 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 had been dispensed with, the unabsorbed depreciation from Assessment year 1997-98 up to the assessment year 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." 6.3 After going through the facts of the case and the judgement of Hon'ble High Court of Gujarat, Ahmedabad in the above mentioned case which contains identical facts, the disallowance made by the AO deserves to be deleted, therefore, it is deleted. This ground of appeal is allowed." 6. We have heard rival contentions and perused the material on material carefully. We have noticed that the Co-ordinate Bench of ITAT Ahme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. ITA No. 2000/Ahd/2016 7. The assessee has raised following grounds of appeal:- "Your appellant being aggrieved by the Order passed by the learned Commissioner of Income Tax, (Appeals) -4, Ahmedabad presents this appeal against the same on the following amongst other grounds. 1. The Ld. CIT(A) has erred in holding that assessment u/s 147 of the Act was valid and not accepting the contention of the appellant that all the facts and relevant details have already been scrutinized at the time of original assessment : proceedings u/s 143(3) and hence the reopening of assessment u/s 147 is totally bad in law, void-ab-initio and without jurisdiction. It is submitted that the order passed by A.O. u/s 143(3) r.w.s. 147 deserves to be quashed and be set aside. 2. The Ld. CIT(A) has erred in law and on facts in confirming the action of Assessing Officer treating the total Agmark Charges of Rs. 27,70,753/- as intangible asset within the meaning of Section 32(1)(ii) and thus thereby making the net disallowance of Rs. 20,78,065 after allowing the depreciation of Rs. 6,92,688/-.It is submitted that the payment made towards Agrnark Charges is recurring in nature and it is incurred pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate for Agmark was given for 5 years which prove that the appellant is deriving benefit of enduring nature. Looking to these facts and the provisions of the Act, the AO is justified in making these additions. These additions are confirmed. This ground is dismissed." 10. We have considered the rival contentions and perused the material on record carefully. The Ld. Counsel has placed reliance on the decision of ITAT Mumbai in the case of Red Chillies Entertainment Pvt.Ltd.vs ACIT vide ITA No.5271/Mum/2013.However, we find the cited case pertain to certification expenses in production of feature films and Television Programms having different facts from the case of the assessee. This submission of the counsel is not acceptable as the facts of the case of the assessee are distinguishable from the cited case. We observe that Agmark is a kind of brand which certify the quality benchmark for all agricultural products produced in India. Agmark certification process helps to make certified all the agricultural products to be available in the market. India exports its large number of agricultural products and commodities which are required to be certified under AGMARK Act as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble High Court of Gujarat, Ahmedabad j and the AO passed the order as per directions of Hon'ble High Court after disposing off the objection which were not challenged by the appellant. Now raising the ground against the re-opening of assessment proceedings is not as per the provisions of the Act as well as judicial pronouncements on this issue by the Hon'ble High Court of Gujarat, Ahmedabad. Therefore, this ground of appeal is dismissed." We have considered the rival contentions of both the sides on this issue and perused the material on record. We are inclined with the findings of the Ld.CIT(A) that the assessing officer has carried out the fresh assessment as per the direction of Hon'ble High Court, therefore, we do not find any error in the decision of the Ld.CIT(A) on this issue. Accordingly, this ground of appeal of the assessee is dismissed. ITA No. 2001/Ahd/2016 12. The assessee has raised following grounds of appeal:- "Your appellant being aggrieved by the Order passed by the learned Commissioner of Income Tax, (Appeals)-4, Ahmedabad presents this appeal against the same on the following amongst other grounds. 1. The CIT(A) has erred in confirming t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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