The Commissioner Of Income Tax-8, Mumbai v. M/S Delhi Bisleri Company Ltd., Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1370 OF 2013 The Commissioner of Income Tax-8, Mumbai..Appellant Vs. M/s Delhi Bisleri Company Ltd., Mumbai ..Respondent .... Mr. Arvind Pinto, Advocate for Appellant.Mr. S.E. Dastur, Sr. Advocate a/w Nishant Thakkar and Jas Singhvia/w Ms. Meghana Bansal, Advocates i/b PDS Legal for Respondent..... CORAM : M.S. SANKLECHA & N.M. JAMDAR, JJ.DATED : 1 JULY 2015 P.C.: This appeal by the revenue arises from order dated 30November 2012 passed by the Income Tax Appellate Tribunal (the'Tribunal') disposing of cross appeals as well as cross objection filedby the assessee and the revenue for the Assessment Year 1999-00. 2.Counsel for both the sides are agreed that issues arisingherein are identical to issue which were raised by the Revenue inIncome Tax Appeal No. 1436/2013 in the case of CIT Vs. Bisleri Sales Ltd. which has been disposed of by this Court on 30 June2015. In view of the decision in Bisleri Sales Ltd., the questionraised in the present appeal also do not warrant consideration asthey do not raise any substantial question of law. 3.However, Mr. Pinto, the learned Counsel for the Revenuesubmits that there is one additional question in this appeal whichreads as under: “Whether on the facts and circumstances of the caseand in law, the Tribunal was justified in holding thatunabsorbed depreciation allowance brought forwardfrom 1991-92 to 1996-97 was eligible for set offagainst short term capital gains u/s. 50 of the Act,without appreciating that as per the provisions ofsection 32(2)(iii)(a) of the Act as applicable to A.Y.1999-00, brought forward unabsorbed depreciationallowance could be set off only against profits andgains, if any, of any business or profession carried onby the assessee and assessable for that assessmentyear?” 4.We find that the impugned order has upheld the claim ofthe respondent-assessee by following the decision of the SpecialS.S.DESHPANDE2 / 3 Bench of the Tribunal in DCIT Vs. Times Guarantee Ltd. [2010]131 TTJ (Mum.) 257 (SB) wherein it has been held that for theAssessment Year 1999-00, depreciation under Section 32(1) can beset off firstly against the business income and then against incomeunder any other head. We specifically asked Mr. Pinto whether anyappeal is preferred against the order of the Special Bench, he wasnot able to give any categorical answer. Besides he has not pointedout any distinguishing feature in the present facts which wouldwarrant the Tribunal taking a different view from that taken by theSpecial Bench in Times Guarantee Ltd. (supra). Moreover, neitherthe appeal memo indicates as to why the Revenue is of the viewthat decision in Times Guarantee Ltd. (supra) would not apply inthe facts of the present case nor does it indicate whether the appealhas been preferred by the decision of Special Bench in TimesGuarantee Ltd. (supra). In the above view, the additional questionas proposed does not give rise to a substantial question of law. 5.Accordingly appeal dismissed. No order as to costs. [N.M. JAMDAR, J] [M.S. SANKLECHA, J.]