2025 (9) TMI 156 - AT - Income Tax

Assessment remitted to AO to examine and allow carried forward unabsorbed depreciation under section 32(2) where applicable

ITAT PATNA - AT remanded the matter to the AO, directing examination of whether any unabsorbed depreciation from earlier years remains to be carried ... Calculation of unadjusted depreciation of earlier years - HELD THAT:- As there is no clarity whether the assessee had claimed depreciation in previous years which could not be absorbed and hence was needed to be carried forward. It is clear that a plain reading of section 32(2) of the Act would ensure that any unabsorbed depreciation would be available for setting of in future financial years. There are a catena of judgments which direct that the AO is duty bound to consider claims of depreciation even when such claims have not been clearly presented in the return of income. In light of this position, we direct that the Ld. AO must examined whether there is any unabsorbed depreciation of previous years which is required to be carried forward or set off and allow the same as per law. We are aware that there may have been a consolidated claim of brought forward losses (which included depreciation) which may have been denied by any condition of filing return of income on time for allowance of the said claim. AO would do well to see if such a composite claim also has unabsorbed depreciation and in case it was so then the same deserves to be allowed as per law. This matter is remanded back with these directions. Appeal filed by the assessee is allowed for statistical purposes. ISSUES PRESENTED AND CONSIDERED 1. Whether unabsorbed depreciation of earlier assessment years, not specifically claimed in the return for those years but asserted later in appeal/rectification proceedings, is allowable to be carried forward and set off under the legal fiction in section 32(2) of the Act. 2. Whether the Assessing Officer and the Appellate Authority are precluded from examining and allowing a claim for carry forward/set off of unabsorbed depreciation when such claim is first raised during appellate proceedings. 3. Whether brought forward business losses (including or excluding depreciation) claimed to be carried forward for a prior assessment year should be verified and allowed where no reason was recorded by the AO for rejection. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Allowability of unabsorbed depreciation under section 32(2) when not claimed earlier Legal framework: Section 32(2) provides that part of depreciation allowance to which effect has not been given in a previous year shall be added to the allowance for depreciation for the following previous year (the legal fiction permitting carry forward and adjustment of unabsorbed depreciation). Precedent treatment: The Tribunal referred to a 'catena of judgments' holding that the AO is required to consider claims of depreciation even when not clearly presented in the return of income; these authorities were treated as persuasive and followed in principle. Interpretation and reasoning: The Court read section 32(2) as providing an entitlement to carry forward unabsorbed depreciation regardless of the technical omission in earlier returns. Given the statutory mechanism, the omission does not nullify the legal right; rather, the AO is duty bound to examine whether unabsorbed depreciation exists and, if so, to allow carry forward/set off in accordance with law. The Tribunal noted lack of clarity in the record as to whether such depreciation existed and therefore directed factual and legal examination by the AO. Ratio vs. Obiter: Ratio - a claim for carry forward/set off of unabsorbed depreciation arising under section 32(2) can be considered and allowed even if the claim was first made in appellate or rectification proceedings; the AO must examine and allow such claim if supported by evidence and law. Obiter - general comments on the breadth of judicial authorities and operational practice regarding late claims. Conclusion: The matter was remitted for fresh verification and decision by the AO on the existence and quantum of any unabsorbed depreciation, with directions to allow such amount as per section 32(2) if established. Issue 2 - Competence of AO/Appellate Authority to refuse belated claims as not being inadvertent mistakes and the relevance of administrative guidance Legal framework: Authorities and administrative provisions permit consideration of belated claims in appropriate circumstances (reference was made to the spirit of section 119(2)(b) as administrative guidance to avoid genuine hardship). Precedent treatment: The Tribunal declined to endorse the Appellate Authority's blanket approach of rejecting belated claims merely because they were first taken in appeal; instead it aligned with judicial precedents imposing a duty on the AO to consider depreciation claims even if not explicit in returns. Interpretation and reasoning: The Appellate Authority had relied on reasoning that repeated belated claims cannot be routinely accepted and that they fall outside the scope of 'inadvertent mistake'. The Tribunal distinguished that administrative caution from the statutory entitlement under section 32(2). The Tribunal emphasized that while routine acceptance of all belated claims is undesirable, the statutory right to carry forward unabsorbed depreciation cannot be negated by procedural objections alone; each claim requires fact-specific enquiry by the AO. Ratio vs. Obiter: Ratio - procedural objections alone do not absolve the AO from examining a substantive statutory claim for unabsorbed depreciation; the AO must assess entitlement on merits. Obiter - observations about misuse of belated claims and the role of section 119(2)(b) as a guide to avoid hardship. Conclusion: The Appellate Authority's categorical denial of the depreciation claim on the ground it was first raised in appeal was set aside; the AO is directed to adjudicate the claim on its merits consistent with section 32(2) and relevant judicial precedents. Issue 3 - Verification and allowance of brought forward business losses where AO recorded no reason for rejection Legal framework: Losses are required to be determined each year and may be carried forward and set off subject to conditions (e.g., timely filing), with the AO's determination to be supported by reasons and verification of claim particulars. Precedent treatment: The Tribunal accepted the Appellate Authority's finding in favor of the assessee on brought forward business losses to the extent the AO had not given any reason for rejection and directed the AO to verify and allow set off where appropriate. Interpretation and reasoning: The Tribunal noted that the AO had declined to give reasons for rejecting the claim of brought forward business losses for AY 2013-14 and that the assessee asserted timely filing of the return for that year. In absence of findings to the contrary, the AO was directed to verify the factual matrix (timeliness, computation of loss) and, if satisfied, to allow the set off with the income of the instant year. Ratio vs. Obiter: Ratio - where AO has not recorded reasons for rejection of carried forward business losses and the assessee asserts compliance (e.g., timely return filing), the AO must verify and, if entitlements are established, allow set off. Obiter - procedural admonition as to recording of reasons and the interplay with composite claims. Conclusion: The AO was directed to verify the claim of carried forward business loss and allow set off if the claim is substantiated; remand is ordered for this purpose. Cross-references and dispositive conclusion All three issues are interrelated: the primary remedial direction was remand to the AO to undertake a factual and legal examination of (a) whether unabsorbed depreciation exists and its carry forward entitlement under section 32(2), and (b) whether brought forward business losses (including any composite claim incorporating depreciation) are admissible for set off, with specific instruction to allow amounts as per law if established. The Tribunal following established precedents mandated consideration on merits rather than blanket procedural rejection. Disposition: Appeal allowed for statistical purposes and matter remitted to the AO for adjudication in accordance with the directions above.