The Pr. Commissioner Of Income Tax-5 v. Hindustan Antibiotics Limited

Sharayu Khot. IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1042 OF 2015 The Pr. Commissioner of Income Tax-5 …Appellant Versus Hindustan Antibiotics Limited …Respondent ---------- Mr. Suresh Kumar, for the Appellant. Mr. Mihir Naniwadekar, a/w Mr. Ruturaj Gurjar, for theRespondent. ---------- CORAM :M.S. SANKLECHA &RIYAZ I. CHAGLA, JJ. DATE : 20 February 2018 ORDER : 1.This Appeal under Section 260A of the Income TaxAct, 1961 (“The Act” for short), challenges the order dated 29January 2015 passed by the Income Tax Appellate Tribunal(“The Tribunal” for short). The impugned order dated 29January 2015 is in respect of Assessment Year 2007-08. 1/4 44-ITXA-1042-15.doc 2. The Revenue urges the following question of law for our consideration:- 1)Whether on the facts and in the circumstances of the case and in law, the Tribunal was right inholding that Section 263 of the Act cannot beinvoked as the twin conditions are not satisfiedwithout testing on the touch stones of suchconditions laid down in the Act? 2) Whether on the facts and in the circumstances ofthe case and in law, the Tribunal was right inholding that the order passed by the AssessingOfficer for assessment year 2007-08 is noterroneous even though the Assessing Officer hasallowed set-off of brought forward loss in thesaid year without application of mind, which isnot in accordance with the provisions of law? 2/4 44-ITXA-1042-15.doc 3.The basic issue which arises in this Appeal on meritsis, whether the Respondent-Assessee would be entitled to carryforward unabsorbed deprecation of Rs. 87.08 Crores pertainingto the period 1974-75 to 1996-97 for more than eight years thatis beyond assessment year 2004-05. In the facts of the presentcase, the Assessing Officer by order dated 31 December 2009 forassessment year 2007-08 had allowed the benefit of carryforward unabsorbed deprecation pertaining to the years claimedby the Respondent-Assessee. However, the Commissioner ofIncome Tax was of the view that the same cannot be allowedand in exercise of his powers of Revision under Section 263 ofthe Act, set aside the assessment order dated 31 December2009. Being aggrieved, the Respondent-Assessee filed an Appealto the Tribunal. By the impugned order dated 29 January 2015,the Appeal was allowed by holding that on merits the orderdated 31 December 2009 of the Assessing Officer does not callfor interference and relied upon the decision of the Gujarat HighCourt inGeneral Motors India Pvt.Ltd. Vs. DeputyCommissioner of Income Tax[1]. 1 (2013)354 ITR 244 (Guj.) 3/4 44-ITXA-1042-15.doc 4.Mr. Suresh Kumar, learned Counsel appearing forthe Revenue, very fairly states that the questions as proposedhave become academic in view of the decision of this Court in Commissioner of Income Tax Vs. Hindustan Unilever Ltd.[2]which has approved and the decision of the Gujarat High Courtin General Motors India Pvt.Ltd. (supra) on this very issue. 5.In the light of above, the questions as proposed doesnot give rise to any substantial question of law. Thus, notentertained. 6.Accordingly, the Appeal is dismissed, with no orderas to costs. [RIYAZ I. CHAGLA J.] [M.S. SANKLECHA, J.] 2 (2017)394 ITR 73 (Bom.) 4/4