2016 (4) TMI 1480 - AT - Income Tax

Section 263 Revision Denied for Disallowing Set-Off of Unabsorbed Depreciation After HC Ruling

The ITAT Ahmedabad held that the revision under section 263 was not justified for disallowing the set-off of unabsorbed depreciation, as the issue had ... Revision u/s 263 - Set off of unabsorbed depreciation which resulted into under assessment - HELD THAT:- As in view of the judgement of General Motors India (P) Ltd. [2012 (8) TMI 714 - GUJARAT HIGH COURT] which is followed by another Bench in the case of CIT vs. Gujarat Themis Biosyn Ltd.[2014 (5) TMI 194 - GUJARAT HIGH COURT] and held that carry forward of unabsorbed depreciation concerning impugned assessment years, i.e. 1997-98 to 2001-02 could be set off in subsequent years. The only basis for invoking the provisions of section 263 of the Act was that there were amendment into provision. Since the issue has been decided by the Hon’ble Jurisdictional High Court with regard to availability of unabsorbed depreciation, we are of the considered view that it is not a fit case for invoking the provisions of section 263 of the Act. Thus, the ground raised in this appeal is allowed. 1. ISSUES PRESENTED and CONSIDERED Whether the order passed under section 263 of the Income Tax Act, 1961 revising the assessment order under section 143(3) was legal and justified. Whether the Assessing Officer's order under section 143(3) was erroneous and prejudicial to the interests of revenue, thereby justifying revision under section 263. Whether unabsorbed depreciation from Assessment Years 1996-97 to 1998-99 could be carried forward and set off beyond eight succeeding years as per the amended provisions of section 32(2) of the Income Tax Act. Interpretation and applicability of the amendment to section 32(2)(b) effective from 01/04/1997 regarding the carry forward and set off of unabsorbed depreciation. Whether the Commissioner of Income Tax (Appeals) erred in not fully considering the submissions and evidence produced by the appellant before revising the assessment order. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Legality and Justification of Revision under Section 263 Relevant legal framework and precedents: Section 263 of the Income Tax Act empowers the Commissioner to revise an order if it is found to be erroneous and prejudicial to the interests of revenue. The power is discretionary and must be exercised judiciously, ensuring that the original order was indeed erroneous and prejudicial. Court's interpretation and reasoning: The Court observed that the revision under section 263 was initiated solely on the basis of an amendment to section 32(2)(b) regarding depreciation carry forward rules. The Assessing Officer had conducted enquiry and passed the assessment order after applying his mind. Key evidence and findings: The assessment order under section 143(3) was passed on 31/12/2009 after due consideration of depreciation set off. The Commissioner's revision was based on the view that depreciation carry forward was limited to eight succeeding years post amendment. Application of law to facts: The Court noted that since the issue concerning the carry forward of unabsorbed depreciation had been judicially settled by the Hon'ble Jurisdictional High Court in favor of the assessee, the revision under section 263 was not warranted. Treatment of competing arguments: The appellant contended that the AO's order was one of the possible views and not erroneous. The Revenue supported the revision. The Court gave weight to the judicial precedent favoring the appellant. Conclusions: The Court held that invoking section 263 was improper as the AO's order was not erroneous or prejudicial. The revision was quashed and the appeal allowed on this ground. Issue 2: Whether the AO's Order under Section 143(3) was Erroneous and Prejudicial Relevant legal framework and precedents: An order is erroneous and prejudicial if it is contrary to law or facts and causes loss to revenue. The AO's assessment order is to be based on evidence and proper application of law. Court's interpretation and reasoning: The AO allowed set off of unabsorbed depreciation after enquiry. The Court emphasized that the AO's order represented one possible view and was supported by judicial decisions. Key evidence and findings: The AO's order dated 31/12/2009 allowed set off of unabsorbed depreciation from earlier years. The CIT's revision was based on a literal reading of the amended section 32(2)(b). Application of law to facts: The Court referred to the High Court rulings which upheld the carry forward of unabsorbed depreciation beyond eight years for the relevant assessment years. Treatment of competing arguments: The appellant relied on judicial precedents supporting the AO's view; the Revenue argued for strict application of the amendment. The Court favored the appellant's interpretation. Conclusions: The AO's order was not erroneous or prejudicial; it was a legitimate exercise of discretion and law. Issue 3: Interpretation of Section 32(2)(b) Regarding Carry Forward and Set Off of Unabsorbed Depreciation Relevant legal framework and precedents: Section 32(2)(b), as amended w.e.f. 01/04/1997, restricts carry forward of unabsorbed depreciation to eight succeeding assessment years from the year it was first computed. Judicial interpretations have clarified the scope and retrospective application of this amendment. Court's interpretation and reasoning: The Court acknowledged the amendment but observed that its applicability to unabsorbed depreciation from assessment years prior to the amendment was subject to judicial scrutiny. The High Court had ruled that unabsorbed depreciation for AYs 1997-98 to 2001-02 could be carried forward beyond eight years. Key evidence and findings: The appellant relied on two High Court decisions affirming carry forward beyond eight years for the relevant years. The CIT's order did not sufficiently consider these precedents. Application of law to facts: The Court applied the judicial precedents to the facts, holding that the AO's allowance of set off was consistent with law. Treatment of competing arguments: The Revenue argued for strict application of the amendment limiting carry forward. The appellant argued for reliance on judicial decisions permitting extended carry forward. Conclusions: The Court held that the amendment did not preclude carry forward of unabsorbed depreciation for the impugned years and the AO's allowance was lawful. Issue 4: Consideration of Submissions and Evidence by the Commissioner of Income Tax (Appeals) Relevant legal framework and precedents: Principles of natural justice require that all submissions and evidence be duly considered before passing an order revising an assessment. Court's interpretation and reasoning: The appellant contended that the CIT(A) failed to properly consider the submissions and evidence. The Court noted that the CIT(A)'s order was passed without adequate reasoning on the appellant's contentions. Key evidence and findings: The appellant had produced evidence and cited judicial precedents supporting the carry forward of unabsorbed depreciation. The CIT(A) did not address these points in detail. Application of law to facts: The Court found that the CIT(A) erred in not fully considering the appellant's contentions and evidence before revising the assessment. Treatment of competing arguments: The Revenue did not provide sufficient justification for the omission. The appellant's submissions were supported by binding judicial decisions. Conclusions: The Court concluded that the CIT(A) failed to pass a reasoned order considering all relevant submissions, rendering the revision order unsustainable.