The Pr. Commissioner Of Income Tax -1 Aurangabad v. M/S Goodyear South Asia Tyres Pvt. Ltd., Waluj Aurangabad

(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD980 INCOME TAX APPEAL NO.6 OF 2018 THE PR. COMMISSIONER OF INCOME TAX -1 AURANGABAD..APPELLANT VERSUS M/S GOODYEAR SOUTH ASIA TYRES PVT. LTD., WALUJ AURANGABAD..RESPONDENT … Mr. Alok M. Sharma, Advocate for the Petitioner. Mr. Girish K. Thigale (Naik), Advocate forRespondent. … CORAM : S. V. GANGAPURWALA & MANGESH S. PATIL, JJ. DATED : 21[st] JUNE, 2019. PER COURT:- 1.The matter pertains to Assessment Year2008-2009. 2.Mr. Sharma, learned counsel for theappellant submits that the appeal is filed onfollowing substantial question of law: 1. Whether on the facts and in the circumstancesof the case and in law the learned Tribunalwas justified in holding that thedepreciation allowances worked-out even aftereight subsequent assessment years isallowable, ignoring the amendment to Section32(2) by the Finance Act, 2001?of the case and in law the learned Tribunalwas justified in holding that thedepreciation allowances worked-out even aftereight subsequent assessment years isallowable, ignoring the amendment to Section32(2) by the Finance Act, 2001? 2. Whether on the facts and in the circumstancesof the case and in law the learned Tribunal,by relying on the decision of a Hon'ble HighCourt not within its jurisdiction, wasjustified in holding that the depreciationof the case and in law the learned Tribunal,by relying on the decision of a Hon'ble HighCourt not within its jurisdiction, wasjustified in holding that the depreciation allowances worked-out even after eightsubsequent assessment years are allowable, assuch a decision is not binding upon it? 3. Whether on the facts and in the circumstancesof the case and in law the learned Tribunalwas justified in not considering the findingof the ITAT, Mumbai Bench in its decision inthe case of DCIT, Circle-1(3), Mumbai v.Times Guaranty in ITA Nos.4917 and4918/Mum/2008 for the Ays 2003-2004 & 2004-2005 dated 30/06/2010, in which it has beenheld that unabsorbed depreciation of earlierperiod is allowable under the new provision,but is to be dealt with in accordance of theold provision? 3.The learned counsel submits that theamendment to section 32(2) of the Finance Act, 2001would be prospective in nature. It cannot haveretrospective operation. The period of which thepetitioner is seeking benefit is 1997-1998, 1998-1999 and 1999-2000. The learned counsel tosubstantiate his contention relies on the judgmentof the Madras High Court in a case of TheCommissioner of Income Tax Vs. M/s. Jain Housingand Constructions Ltd. reported in (2012) 6 TaxCorp(DT) 53338 (Madras). According to the learnedcounsel the presumption is that the amendment isalways prospective and unless the amendmentspecifically stipulates, the same cannot operateretrospectively. 4.Mr. Thigale, learned counsel submits thatin respect of the same parties for the AssessmentYear 2007-2008, this Court has dismissed the Appeal filed by the Revenue involving the same issue underorder dated 26.02.2018 in Income Tax AppealNo.06/2016. The said order has not been assailedby the Revenue before the Apex Court. Even on theground of parity, the same has to be followed. Thelearned counsel further relies on the judgment ofthe jurisdictional High Court in Commissioner ofIncome Tax-1, Mumbai Vs. Hindustan Unilever Ltd.reported in (2016) 72 taxmann.com 325 (Bombay), soalso the judgment of Gujarat High Court in case ofGeneral Motors India (P.) Ltd. Vs. DeputyCommissioner of Income Tax reported in (2012) 25taxmann.com 364 (Guj.). The learned also relies onthe judgment of the Gujarat High Court in case ofPrincipal Commissioner of Income Tax Vs. AccuraPolytech (P.) Ltd.reported in(2018) 89taxmann.com 183 (Gujarat). According to thelearned counsel the said judgment has beenconfirmed by the Apex Court in SLP No.29228/2018under order dated 10.09.2018. 5.We have considered the submissionscanvassed by the learned counsel for the respectiveparties. 6.It is a matter of record that for theAssessment Year 2007-2008, the similar issuebetween the litigating parties had arisen and thisCourt under order dated 26.02.2018 dismissed theIncome Tax Appeal No.06/2018 filed by the Revenue. In the said appeal also the similar substantialquestions of law were raised. The amendment ofSection 32(2) of Finance Act, 2001 was underconsideration. It was held that the Assessee wouldbe entitled to have benefit of unabsorbeddepreciation. 7.In case of Principal Commissioner of Income Tax Vs. Accura Polytech (P.) Ltd. (supra)the very issue was before the Gujarat High Court.In the said case it was held that the amendment inSection 32(2) of the Act is applicable fromAssessment Year 2002-2003 and subsequent years. Itfurther observed that any unabsorbed depreciationavailable to an Assessee on 01.04.2002 will bedealt with in accordance with provision of Section32(2) of the Act, as amended by the Finance Act,2001 and not by the provisions of Section 32(2) ofthe Act, as it stood before the said amendment. 8.The jurisdictional High Court in case of Commissioner of Income Tax-1, Mumbai Vs. HindustanUnilever Ltd. (supra) observed thus: “3.Regarding question no.1(a), 1(b) and 1(c): (a) Mr. Pinto, learned counsel for the revenuestates that all the three questions dealwith the issue of justifiability ofapplication of Arms Length Price (ALP)only to A.E. transactions and not to alltransactions. Mr. Pinto further veryfairly states that the issue raised hereinwithregardtotransferpricing(a) Mr. Pinto, learned counsel for the revenuestates that all the three questions dealwith the issue of justifiability ofapplication of Arms Length Price (ALP)only to A.E. transactions and not to alltransactions. Mr. Pinto further veryfairly states that the issue raised hereinwithregardtotransferpricing (5) adjustments stand concluded against therevenue and in favour of the respondent –assessee by decisions of this Court in(CIT Vs. M/s. Tara Jewellers Exports Pvt.Ltd. in Income Tax Appeal No.1814 of 2013rendered on 5th October, 2015, CIT V.Pedro Araldite Pvt. Ltd. Income Tax AppealNo.1804 of 2013 rendered on 24th November,2015., CIT V. M/s. Thyssen KruppIndustries Pvt. Ltd. Income Tax AppealNo.2201 of 2013 rendered on 2nd December,2015; CIT V. M/s. Summit Diamond (India)Pvt. Ltd. Income Tax Appeal No.1647 of2013 rendered on 11th July, 2016). (b) In the above view question, nos.1(a), 1(b)and 1(c) being concluded by order of thisCourt, no substantial questions of lawarises. Thus not entertained.”and 1(c) being concluded by order of thisCourt, no substantial questions of lawarises. Thus not entertained.” 9.In view of the consistent views taken bythis Court and the Gujarat High Court and confirmedby the Apex Court and also considering the factthat for the previous Assessment Years the sameissue has been held against Revenue, no substantialquestion of law arises. 10.costs.costs. (MANGESH S. PATIL) (S. V. GANGAPURWALA) JUDGE JUDGE Devendra/June-19