TMI Blog2023 (7) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... ecomes entitled to the benefit within the ambit of section in view of the clear language of the section. The questions framed as substantial question of law on the ground of carry forward of unabsorbed depreciation without any limitation period, does not arise as the issue is settled in General Motors India (P) Ltd. [ 2012 (8) TMI 714 - GUJARAT HIGH COURT] as held that 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 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 F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the facts of the case as well as law, the Income Tax Appellate Tribunal was justified in allowing the appeal of the assessee without considering the fact that the issue involved is not reached its finality? 3.1 The facts of the case briefly stated are that the Assessing Officer passed assessment order dated 26.3.2013 in respect of assessment year 2007-2008 under section 143(3) read with section 147 of the Act in which improper set off of unabsorbed depreciation to the tune of Rs. 15,33,26,384/- against the income under the head Short Term Capital Gain and Long Term Capital Gain was disallowed. Unabsorbed depreciation of Rs. 5,22,76,985/- pertaining to assessment year 1996-97 to assessment year 1998-1999 were disallowed. Business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried forward to the assessment year 2002-03 and became part thereof. Thus the assessee is eligible to carry forward and the set off against the profits and gains of subsequent years, without any limit whatsoever. 4. Recording the above submission of the Ld. D.R. and Id. CIT(A) who has followed the jurisdictional High Court judgment in the case of General Motors (India) Pvt. Ltd. (cited supra). Thus we have no hesitation in following the ratio of the judgment of the jurisdictional High Court, we don't find any merits in the grounds raised by the Revenue. 4. While various contentions were raised by learned advocate for the revenue to contend that the decision of the Tribunal is erroneous in law, there was no gainsaying that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation of Rs.43,60,22,158/- for A.Y. 1997-98, which was not eligible for being carried forward and set off against the income for the A.Y. 2006-07. 5.1 It was further stated in para 31, Prior to the Finance Act No.2 of 1996 the unabsorbed depreciation for any year was allowed to be carry forward indefinitely and by a deeming fiction became allowance of the immediately succeeding year. The Finance Act No.2 of 1996 restricted the carry forward of unabsorbed depreciation and set-off to a limit of 8 years, from the A.Y.1997-98. Circular No.762 dated 18.2.1998 issued by the Central Board of Direct Taxes (CBDT) in the form of Explanatory Notes categorically provided, that the unabsorbed depreciation allowance for any previous year to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucceeding year. Where there is current depreciation for such succeeding year the unabsorbed depreciation is added to the current depreciation for such succeeding year and is deemed as part thereof. If, however, there is no current depreciation for such succeeding year, the unabsorbed depreciation becomes the depreciation allowance for such succeeding year. We are of the considered opinion 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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