2013 (5) TMI 866

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....x is not justified in invoking provisions of section 263 of the Act. 3. Vide ground No. 2 the assessee contends that consequent to the amendment by the Finance Act 2001, the assessee is entitled to claim set off of unabsorbed depreciation relating to A.Ys. 1995-96, 1998-99, 2000-01 & 2001- 02. In the event of not accepting the aforementioned claim the assessee company contends that brought forward business losses of earlier years ought to have been set off of against the sale of business asset. 4. Similarly in Ground No.4 it contends that learned Commissioner of Income Tax erred in not allowing set off of unabsorbed depreciation against capital gain of A.Y. 2007-08 by overlooking the fact that the assessee became a sick industrial com....

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....yond 8 years as the law stood at that point of time but subsequent to the aforementioned Judgement Hon'ble Gujarat High Court had taken a view that intention of the Legislature was to allow unabsorbed depreciation allowance for an indefinite period of time since it was for enabling the industry to conserve sufficient funds to replace plant and machinery and, bearing in mind the intention of incentive, restriction of 8 years was dispensed with by an amendment. Subsequent to the decision of Hon'ble Gujarat High Court, ITAT "K" Bench, Mumbai in the case of Hindustan Unilever Ltd. (22 ITR 737) followed the decision of Hon'ble Gujarat High Court in preference to the decision of the Special Bench; since there is no contrary decision o....