Ita/9/2019 Of The Pr. Commissioner Of Income-Tax v. M/S Kids Kemp

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE JZ6TH DAY OF AUGUST 2071 PRESENT| THE HON’BLE MR. JUSTICE ALOK ARADHE AND| THE HON’BLE MR.JUSTICE HEMANT CHANDANGOUDAR. 1LT.A. NO.9 OF 2019 C/W LT.A. NOQ.1LQ OF 201 IN I.T.A. NO.9 OF 2019 BEITWEEN 1. THE PR. COMMISSIONER OF INCOME-TAX. 59TH FLOOR, BMTC BUILDING 68O FEET ROAD, KORMANGALABENGALURU-560095.BENGALURU-560095. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-1(2)(1), 2ND FLOORBMTC BUILDING, 80 FEET ROAD.BMTC BUILDING, 80 FEET ROAD. KORMANGALA, BENGALURU-560095,. .., APPELLANTS (BY SRI. SANMATHI E.I. ADV., FORSRI. ARAVIND K.V. ADV.,) |SRI. ARAVIND K.V. ADV.,) | AND M/S. KIDS KEMP.NO.18, RAMANNSHREE ARCADEM.G. ROAD, BENGALURU-560001 ... RESPONDENT(BY SRI. A. SHANKAR, SR. COUNSEL A/W_SRI. BHAIRAV KUTTAIAH, ADV.,) | THIS I.T.A. IS. FILED UNDER SECTION 260-A OFI.T.ACT, 1961 ARISING OUT OF ORDER DATED 25.05.2018PASSED|IN|M.P.NO.106/BANG/2018 (IN|TTANO.1035/BANG/2016), FOR THE ASSESSMENT YEAR 2009-10, PRAYING TO: I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW|STATED ABOVE. II]. ALLOW THE APPEAL AND SET ASIDE THE ORDERSPASSED BY THE INCOME TAX APPELLATE TRIBUNAL,BANGALOREINM.P.NO.160/BANG/2018 (INITANO.1035/BANG/2016) DATED 25.05.2018 FOR ASSESSMENTYEAR 2OO9-10 ANNEXURE-C CONFIRMING THE ORDER OFTHE APPELLATE COMMISSIONER AND CONFIRM THE ORDERPASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX,CIRCLE-1(2)(1), BENGALURU. IN I.T.A. NO.10 OF 2019BEITWEEN 1. THE PR. COMMISSIONER OF INCOME-TAX. 59TH FLOOR, BMTC BUILDING68O FEET ROAD, KORMANGALABENGALURU-560095.68O FEET ROAD, KORMANGALABENGALURU-560095. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-1(2)(1), 2ND FLOOR BMTC BUILDING, 80 FEET ROAD. KORMANGALA, BENGALURU-560095,. .., APPELLANTS (BY SRI. SANMATHI E.I. ADV., FORSRI. ARAVIND K.V. ADV.,) | AND M/S. KIDS KEMP.NO.18, RAMANNSHREE ARCADEM.G. ROAD, BENGALURU-560001 ... RESPONDENT (BY SRI. A. SHANKAR, SR. COUNSEL A/W_SRI. BHAIRAV KUTTAIAH, ADV.,) | THIS I.T.A. IS. FILED UNDER SECTION 260-A OFI.T.ACT, 1961 ARISING OUT OF ORDER DATED 25.05.2018PASSED|IN|M.P.NO.107/BANG/2018 (IN|LTANO.1036/BANG/2016), FOR THE ASSESSMENT YEAR 2010-11, PRAYING TO: I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW|STATED ABOVE. II]. ALLOW THE APPEAL AND SET ASIDE THE ORDERSPASSED BY THE INCOME TAX APPELLATE TRIBUNAL,BANGALOREINM.P.NO.167/BANG/2018 (INITANO.1036/BANG/2016) DATED 25.05.2018 FOR ASSESSMENTYEAR 2010-11 ANNEXURE-C CONFIRMING THE ORDER OFTHE APPELLATE COMMISSIONER AND CONFIRM THE ORDERPASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX,CIRCLE-1(2)(1), BENGALURU. THESE I.T.As. COMING ON FOR FINAL HEARING, THIS DAY,|ALOK ARADHE J.,DELIVERED THE FOLLOWING: | JUDGMENT These appeals under Section 260-A of the Income TaxAct, 1961 (hereinafter referred to as ‘the Act’, for short) havebeen filed by the revenue against the common order dated25.05.2018 passed by the Income Tax Appellate Tribunal.|ITA No.9/2019 pertains to the Assessment Year 2009-10whereas ITA No.10/2019 pertains to Assessment Year 2010-11. The appeals were admitted by a Bench of this Court ontne following substantial question of law: “Whether.Of)thefactsand|Inthecircumstances of the case and in law, the Tribunalis right in law in setting aside the disallowance ofset off of unabsorbed depreciation by foliowingthe judgment of Gujarat High Court in the case ofGENERAL MOTORSPRIVATE LIMITED., eventhougn the amenaments madaer to Section 32(2)of the Act whicn removed the gap of 8 years inallowing set off of unabsorbed depreciation isprospective and effective only from 1-4-2002?"| 2. Admittedly, an order was passed by the TriDunal on06.07.2017 by which the appeal preferred by the revenue|was dismissed. Against the aforesaid order, the revenue nadfiled two miscellaneous petitions on 13.04.2018 in respect of “Whether.Of)thefactsand|Inthecircumstances of the case and in law, the Tribunalis right in law in setting aside the disallowance ofset off of unabsorbed depreciation by foliowingthe judgment of Gujarat High Court in the case ofGENERAL MOTORSPRIVATE LIMITED., eventhougn the amenaments madaer to Section 32(2)of the Act whicn removed the gap of 8 years inallowing set off of unabsorbed depreciation isprospective and effective only from 1-4-2002?"| 2. Admittedly, an order was passed by the TriDunal on06.07.2017 by which the appeal preferred by the revenue|was dismissed. Against the aforesaid order, the revenue nadfiled two miscellaneous petitions on 13.04.2018 in respect of Assessment Years 2009-10 and 2010-11. $7The aforesaidmiscellaneous petitions were required to be filed within a|period of six months from the end of the month in which theimpugned order was passed. In the instant case, thne|impugned order was passed on 06.07.2017. Therefore, the|petitions under Section 254(2) could have been filed up to|31.01.2018, however, the miscellaneous petitions were filed|beyond the period of six months i.e. 13.04.2018 andtherefore, the petitions were held to be barred by limitation.The revenue was unable to administer before the Tribunal|itself as to how the petitions filed under Section 254(2) of|the Act were within the period of limitation as prescribed|under Section 254(2) of the Act. In these appeals also,|learned counsel for the revenue was unable to point out as tohow the miscellaneous petitions filed by the revenue under|Section 254(2) of the Act were within the period of limitation.The Tribunal has not dealt with the appeals filed by therevenue on merits and nas held the same to be Darred Dy limitation. 3. For tne reasons assigned in ITA No.8/2019, the substantial question of law framed by this Court does not|arise for consideration. In the result, we do not find any merit in the appeals. | The same fail and are nereby dismissed. Sd/-—JUDGE Sd/-JUDGE RY|