“[A]. Whether On The Facts And In The Circumstances Of The Case And In Law, The Hon'ble Itat Was Justified In Dismissing The Tax Appeal Of The Revenue Relying O v. Dcit Reported In (2012) 354 Itr 244, Without Appreciating That Unabsorbed

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/TAX APPEAL NO. 597 of 2019 ========================================================== THE PRINCIPAL COMMISSIONER OF INCOME TAX 4 VersusM/S. BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD ========================================================== Appearance:MRS MAUNA M BHATT(174) for the Appellant(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALAandHONOURABLE MR.JUSTICE A.C. RAO Date : 09/09/2019 ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1.00.This Tax Appeal under section 260(A) of the Income Tax Act, 1961 (for short “the Act”) is at the instance of the revenue and is directed against the order passed by the Income Tax Appellate Tribunal, Ahmedabad, B-Bench in ITA No.1674/Ahd/2017 dated 13/02/2019 for the A.Y. 2013-14. 2.00.The revenue has proposed the following two questions of law for the consideration of this Court :- “[A]. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in dismissing the tax appeal of the Revenue relying on its judgement in the case of General Motors )P) Ltd. Vs. DCIT reported in (2012) 354 ITR 244, without appreciating that unabsorbed depreciation cannot be carried forward beyond the eight assessment years as specified in the section 32(2)(iii)(b) of the Act as amended by the Finance (No.2) Act, 1996 w.e.f. 1[st] April, 1997 and also that the Hon'ble Supreme Court has kept the Question of Law open in the case of General Motors (P) Ltd.? [B]Whether on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal was justified in not appreciating that in the instance case eight years expired prior to instant A.Y. 2013-14 and that the asssessee was not entitled for carrying forward and setting off unabsorbed depreciation of Rs.41,27,25,500/- for A.Y. 2000-01 against the income of A.Y. 2013-14?” 2.00.The ITAT while dismissing the appeal preferred by the revenue has observed in paras 3 and 4 as under :- “3.Aggrieved assessee has filed appeal before the ld. CIT(A). The ld. CIT(A) has allowed the appeal of the assessee after following the decisions of Hon'ble High Court of Gujarat in the case of General Motors India Pvt. Ltd. Vs. DCIT (304 ITR 244) (2012). 4.We have heard the rival contentions and perused the material on record carefully. During the course of appellate proceedings before us the ld. counsel has brought to our notice that Co-ordinate Bench of ITAT in the case of the assessee itself vide ITA No.1993/Ahd/2016 has adjudicated the identical issue on similar facts in favour of the assessee. With the assistance of ld. counsel we have gone through the aforesaid decision of the Co-ordinate Bench. Relevant part of decision is reproduced as under :- 4.We have heard the rival contentions and perused the material on record carefully. During the course of appellate proceedings before us the ld. counsel has brought to our notice that Co-ordinate Bench of ITAT in the case of the assessee itself vide ITA No.1993/Ahd/2016 has adjudicated the identical issue on similar facts in favour of the assessee. With the assistance of ld. counsel we have gone through the aforesaid decision of the Co-ordinate Bench. Relevant part of decision is reproduced as under :- “6.We have heard rival contentions and perused the material carefully. We have noticed that the Co-ordinate Bench of ITAT Ahmedabad vide ITA No.2393/Ahd/2013 dated 03/05/2017 in the case of Gujarat Lease Finance Ltd. has decided the identical issue in favour of assessee. The part of the judicial findings and the principles laid down by the Hon'ble Jurisdictional High Court in the case of General Motors India (P) Ltd. are reproduced here as we are of the considered opinion that any unabsorbed depreciation available to an assessee on 1[st] 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 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 Finance Act, 2001 and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever.” The relevant part of the decision of the Co-ordinate Bench of the ITAT decided in the case of Gujarat Lease Finance Ltd. vide ITA No.2393/Ahd/2013 dated 03/05/2017 is reproduced as hereunder :- “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 judgement given in General Motors India (P) Ltd. it was held that carry forwardofunabsorbeddepreciation 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 Co-ordinate Bench as supra, we do not find any error in the finding of the ld. CITA(A), therefore, the appeal of the revenue is dismissed. In the result, both the appeals of the revenue are dismissed.” 3.00.Thus, the Appellate Tribunal relied on the order passed by the Co-ordinate Bench in the case of the assessee itself. The said order passed by the Co-ordinate Bench of the ITAT was carried in appeal by the revenue before this Court by filing Tax Appeal No.1042 of 2018. The said appeal came to be dismissed by this Court vide order dated 21/8/2018. In the overall view of the matter, we are convinced that no case is made out for interference. The appeal, therefore, fails and is hereby dismissed. RAFIK.. Sd/- (J. B. PARDIWALA, J) Sd/- (A. C. RAO, J)