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TMI Blog2018 (12) TMI 1687X X X X Extracts X X X X X X X X Extracts X X X X ..... ed depreciation of Rs. 3,74,81,609/- though Circular No.14 of 2001 had clarified that the amendment to the Finance Act was prospective, which had been rejected by the AO." 2. "On facts and circumstances of the case and in law, the Ld. CIT(A) has erred in law and/or on facts in fresh claim of business expenses of Rs. 62,11,877/- though it was not tenable in law as the assessee had not filed such claim in the return of income." 4. Brief fact of the case is that a search action u/s. 132 of the act was carried out in the group cases of Ankur Dalal Group on 28th March, 2012. Thereafter in accordance with the provision of section 153A of the act, a notice was issued on 5th December, 2012 and in response the assessee has filed its return of income on 28th Jan, 2013 declaring total income at nil. Subsequently, the notice u/s. 143(2) of the act was issued on 11th June, 2013. Further facts of the case are discussed under the respective ground of appeal filed by the revenue. First ground of appeal: carry forward of unabsorbed depreciation of Rs. 3,74,81,609/- 5. During the course of assessment proceedings, the assessing officer noticed that assessee has claimed unabsorbed depreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill retain the original identity and limited life' (of eight years) as prescribed under pre-amendment 32(2). As against this, the Ld. AR has relied on Board Circular and various authorities as narrated by the AO and also reiterated before me, to contend that the AO's understanding of s. 32(2) is erroneous. Further, it is submitted that the less than eight year old carried forward depreciation still surviving as on 1/4/2002 would get a fresh and 'unlimited life' on account of replacement of s. 32(2) with effect from 1/4/2002, and old provision of limited life, would not and cannot continue to govern the 'surviving' carry forward after 1/4/2002. After giving a careful consideration and after minutely perusing the provisions both pre and postamendment, and after also perusing the Authorities carefully, I find that the question of law in controversy is clearly covered by the decision of the Jurisdiction HC in Gujarat Themis Biosyn Ltd. (supra) as also by General Motors (supra), in favour of the appellant, as it has clearly been held therein that in view of circular no. 14 of 2001, the unabsorbed depreciation for the intervening period of and from AY 95-96 to AY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of CIT vs. Gujarat Themis Bio Ltd. (2014) 44 taxman has followed the judicial findings laid down in the decision of the General Motors (P) Ltd. "6. We have heard the rival contentions. We have also perused the judicial pronouncement delivered by the Hon'ble High Court of Gujarat in the case of General Motors India (P.) Ltd vs. DCIT (2012) 25 taxmann.com which was elaborated in detail by the Ld. CIT(A) in his order as supra in this order. We have also perused the judicial pronouncement of Hon'ble Gujarat High Court in the case of CIT vs. Gujarat Themis Biosyn Ltd. [2014] 44 taxmann. com 204 (Gujarat) in which after considering the judgment given in General Motors India (P) Ltd, it was held that carry forward of unabsorbed depreciation concerning impugned assessment years could be set off in subsequent years without any set time limit. In view of the above judicial pronouncement on the issue and the elaborate findings of the ld. CIT(A), we do not find any reason to interfere in the decision of the ld. CIT(A)." Respectfully following the decision of the Hon'ble High Court of Gujarat and the Co-ordinate Bench as supra, we do not find any error in the finding of ld. CIT(A) hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I find that the AO disallowed the claim in and from AY 08-09 on the ground of expenses being pertaining to prior period. Additionally, the AO also loosely, but without narrating the basis, observed that the expenses are of capital nature. AO also, impliedly, it seems, in view of the fact that appellant, obviously, had not made the claim in respective AY (AY 06-07 and 07-08) when the expenditure was actually incurred, also disallowed the alternate claim of allowing the same in the year of incurring on the ground that the alternate claim is a fresh claim which cannot be entertained u/s 153A. After carefully considering the relevant facts and contentions, I find that the appellant has, for raising the Tresh' claim of allowance, drawn support only from the observations, findings and consequent disallowance of the claims of 1/10 deferred revenue expenditure in subsequent years (also under appeal with me) wherein for those years the disallowances have not been made precisely for the reason that the expenditure pertains to previous period. The Ld. AO has neither doubted, nor brought any adverse material on record to question the basic allowability of claim u/s 37. Thus, the claim ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The claim is thus held admissible and allowable. The ground no.2 also thus succeeds. As a passing reference, it is observed here for the sake of completeness that the appellant's related ground in subsequent years when the deferred revenue expenses are claimed are being rejected as observed in the relevant appellate orders." 10. We have heard the rival contentions and perused the material on record carefully. It is noticed that all these expenses were of revenue nature and had been incurred for the purpose of business. The assessing officer has not allowed the claim when the assessee has claimed these expenses as deferred revenue expenditure as 1/10 of such expenses. The assessee has made this alternative claim of expenses after the assessing officer has disallowed its claim of deferred revenue expenditure without any proper reason. During the course of appellate proceedings before ld. counsel has also placed reliance in the case of CIT vs. B.G. Shirka Construction Technology Pvt. Ltd. (2017) 395 ITR 371. Vide above referred judgment, the hon'ble high court of Bombay has held that the asseeee is required to furnish fresh return of income for each of the six assessment years ..... X X X X Extracts X X X X X X X X Extracts X X X X
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