AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (2) TMI 339
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....e Assessing Officer to consider the revised statement of unabsorbed depreciation and book loss furnished by the assessee for computation of Book Profit u/s 115JB of the I.T. Act, 1961 without properly appreciating the fact that the Assessing Officer is bound by law to accept only the claim made by the assessee along with the return of income. iii] The Learned CIT(A) has erred on facts and in law in directing the Assessing Officer to allow set off of unabsorbed depreciation pertaining to A.Y. 1995-96 to A.Y. 1999-2000 against the 'Income from Other Sources' without appreciating the fact that the time period for claiming the above depreciation had already lapsed. iv) The Ld. CIT(A)'s order is contrary in law and on facts and deserves to be set aside. v] The appellant prays that the order of CIT(A) on the above grounds be set aside and that of the AO restored. The appellant craves leave to amend or alter any ground or add a new ground that may be necessary." 3. The Brief facts of the case are that the assessee company is engaged in the business of manufacture of Chemical. 4. During the course of assessment proceedings u/s 143(3) of Income T....
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....re the CIT(A) that in the said figures, there were positive incomes in some of the years. While totaling the brought forward loss of different years, the A.O. has totaled loss figures as well as positive figures which resulted in lowering the assessee's final figure of brought forward business losses of all the years put together. The assessee company requested that the aggregate figure of different years should be considered ignoring the profit of some of the years wrongly considered by the A.O. The CIT(A) observed that for the year ended on 30th June,1999, 31st March 2004, 31st March 2006 and 31st March 2008, there were positive income and the CIT(A) held that as per the provisions of section 115JB of the Act, the lower of brought forward business loss or unabsorbed depreciation is required to be allowed as deduction from book profit. Since in these years there was no business loss being positive income and therefore in aggregate the positive income of these years was not required to be considered. Hence, the CIT(A) directed the A.O. vide orders dated 15-02-2013 to consider lower of brought forward business loss ignoring positive income of respective years or unabsorbed depreciat....
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....s claimed in the return of income filed with Revenue, the said revised statement filed by the assessee company before the AO during assessment proceedings was not considered by the A.O and no cognizance was taken thereof by the AO on the ground that the assessee company's claim raised vide return of income filed with Revenue can only be considered. The CIT(A) duly considered the said claim and has allowed the same on merits. We do not find any infirmity in the orders of the CIT(A) in considering the said claim as adjudicating authorities can always consider and decide on merits, any claim which the taxpayer has raised before the AO during assessment proceedings although the same is not claimed by the taxpayer vide Return of income filed with the Revenue as held by Hon'ble Bombay High Court in CIT v. Pruthvi Brokers & Shareholders (P) Ltd., (2012) 349 ITR 336 (Bom). Thus, the grounds of appeal raised by the Revenue in ground No. i and ii are, therefore, dismissed based on our above discussions. We order accordingly. 9. In ground No. iii, the Revenue contended that the CIT(A) erred in directing the A.O. to consider the revised statement of unabsorbed depreciation and book loss fur....
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....g the material placed on record and the relevant finding of the Ld. CIT(A) and the decisions relied upon before us, the only issue for our adjudication is, whether the finding of the AO and Ld. C!T(A) based on the decision of Special Bench in the case of Times Guarantee would be applicable or not. The AO as well as Ld. CIT(A) after relying upon the Special Bench decision have held that the unabsorbed depreciation for the A.Y. 1997-98; A.Y. 1998- 99; A.Y. 1999-2000 and A.Y. 2000-01 shall be considered as lapsed in the A.Y. 2005-06, A.Y. 2006-07, A.Y. 2007-08 and A.Y. 2008-09 respectively because 8 years have lapsed. The Special Bench in the case of Times Guarantee Ltd. in para 38 of the judgment came to the following conclusion:- "38. The legal position of current and brought forward unadjusted/unabsorbed depreciation/allowance in the three periods, is summarized as under:- A. In the first period (i.e. up to assessment year 1996-97) (i) Current depreciation, that is amount of allowance for the year under section 32(1), can be set off against income under any head within the same year. (ii) Amount of such current depreciation which cannot be so set off with....
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....#39; shall be deemed as depreciation under section 32(1), that is depreciation for the current year in the following year(s} to be set off against income under any head, like current depreciation, in perpetuity. However, in a later decision, the Hon'ble Gujarat High Court vide order dated 23.08.2012 in the case of General Motors India Pvt. Ltd (supra), After considering the provision of section 32(2), before its amendment by Finance Act 2001 and also after the amendment and also the Board Circular No. 14 of 2001 observed and held as under:- "37. The CBDT Circular clarifies the intent of the amendment that it is for enabling the industry to conserve sufficient funds to replace plant and machinery and accordingly the amendment dispenses with the restriction of 8 years for carry forward and set off of unabsorbed depreciation. The amendment is applicable from assessment year 2002-03 and subsequent years. This means that any unabsorbed depreciation available to an assessee on 1st day of April, 2002 (A.Y. 2002-03) will be dealt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001 and not by the provisions of section 32(2) as it sto....