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

1 ita 6.16 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD INCOE TAX APPEAL NO. 6 OF 2016 The Pr. Commissioner of Income Tax-1,Aurangabad.. Appellant Versus M/s Goodyear South Asia Tyres Pvt. Ltd.,Aurangabad .. Respondent Shri Alok M. Sharma, Advocate for the Appellant.Shri Himanshu Sinha h/f Shri G. K. Naik Thigle a/w D. D.Deshmukh, Advocate for Respondent. CORAM : S. V. GANGAPURWALA &A. M. DHAVALE, JJ.DATE : 26th February, 2018 PER COURT: 1.Mr. Sharma, learned advocate submits that appeal is filedon the following substantial question of law - (i)Whether on the facts and in circumstances of thecase, the Hon'ble Tribunal was right in law by allowing the'Unabsorbed Depreciation' allowances worked out evenafter eight subsequent assessment years, ignoring theamendment of section 32 (2) by the Finance Act, 2001? 2 ita 6.16 (ii)Whether on the facts and in circumstances of thecase, the Hon'ble Tribunal was right in law to allow theunabsorbed depreciation allowances even after completionof eight years by relying upon the decision of Nonjurisdictional Hon'ble High Court, even though it is notbinding upon it ? 2.Learned advocate submits that Unabsorbed DepreciationAllowance could not have been worked out even after subsequenteight assessment years. More particularly, in view of theamended Section 32 (2) of the Finance Act, 2001. The said aspecthas not been considered. The learned advocate for therespondent, relies on the judgment of the jurisdictional HighCourt in a case of Commissioner of Income Tax – 1 Vs.Hindustan Unilever Ltd.reported in[2016] 72Taxmann.com 325 (Bombay)to submit that such issue is nolonger res integra. 3.This court in the aforesaid judgment observed as under-“...........“........... 6 (c) We find that the impugned order of the Tribunalwhile allowing the Assessee – respondents' claim follows thedecision of the Gujarat High Court in General Motors India(P.) Ltd. V. Dy. CIT [2013] 354 ITR 244/[2012] 210Taxman 20/25 taxmann.com 364 wherein on identical factsit was held that the unabsorbed depreciation for theAssessment Year 1997-98 upto Assessment Year 2001-02could be allowed to be set off, if it was still unabsorbed on1[st] April, 2001. The above decision also placed upon the 3 ita 6.16 CBDT circular No. 14 of 2001 dated 22[nd] November, 2001to hold that any unabsorbed depreciation which is availableon 1[st] day of April, 2001 would be dealt with in accordancewith the provisions of Section 32(2) of the Act as amendedby the Finance Act of 2001. Moreover, the Circular No. 14of 2001 issued by the CBDT clarifies that restriction of eightyears to carry forward and set off the unabsorbeddepreciation has been dispensed with. Consequently,unabsorbed depreciation for the intervening periodsbetween assessment 1997-98 upto 2001-02, if available inthe assessment year 2002-03 would be allowable as part ofcarried forward depreciation from Assessment Year 2002-03onwards. No decision contrary to the decision of theGujarat High Court has been shown to us. It is clarifiedthat although the decision of the Gujarat High Court wasrendered in context of re-opening notice it has alsoexamined the issue on merits and drew support from theCBDT circular which is beneficial to the assessee toconclude as aforesaid. Nothing has been shown to us toindicate why the decision of the Gujarat High Court inGeneral Motors (India) Ltd. Should not be followed in thepresent facts.” 4.Similar view has been taken by the Gujarat High Court ina case of Principal Commissioner of Income-tax Vs. AccuraPolytech (P.) Ltd. reported in [2018] 89 taxmann.com 183(Gujarat). 5.In the light of above, no substantial question of law arises. 6.The Income Tax Appeal is dismissed. No costs. 4.Similar view has been taken by the Gujarat High Court ina case of Principal Commissioner of Income-tax Vs. AccuraPolytech (P.) Ltd. reported in [2018] 89 taxmann.com 183(Gujarat). 5.In the light of above, no substantial question of law arises. 6.The Income Tax Appeal is dismissed. No costs. [A. M. DHAVALE, J.] [S. V. GANGAPURWALA, J.]