TaxTMI 
TaxTMI 
2016 (8) TMI 736
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.... (3) That the learned CIT(A) has grossly erred in ignoring to deal with the ground of appellant against the action as well as order passed u/s 154 of the Act by the Assessing Officer The action u/s 154 had been wrongly resorted by the assessing officer the issue involved being highly debatable rendering the order passed there under unsustainable the confirmation of the said order by the learned CIT(A) is improper and unjust. (4) That the learned CIT(A) has also erred in dismissing the appellant's appeal by wrongly applying the decision of the Honourable Special Bench of ITAT, Mumbai Bench in the case of DCTI vs Time Guarantee Ltd the facts of the said case being different besides the said case had not arisen out of an order u/s 154 but out of an order /s 143(3) the application of the ratio of the said case to that the appellant's is untenable and improper". 2. Brief facts qua the issue involved are that, assessee company is engaged in the business of manufacture of rolled products of Iron and steel. It had filed its return of income at "nil" on 01.10.2010 and as against the said returned income, assessment was completed under section 143(3) vide order dated 01.03.2013,....
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....In support, strong reliance has been placed on the decision of Hon'ble Gujarat High Court in the case of General Motors India Ltd vs DCIT, reported in 354 ITR 244. 5. On the other hand, Ld. DR strongly relied upon the order of the CIT(A). 6. After considering the relevant finding given in the impugned orders as well as the submissions made by the parties, we find that the Ld. Authorities below, while decided the impugned issue have merely relied upon the decision of Hon'ble Special Bench in the case of DCTI vs Times Guarantee Ltd. (supra). It is an undisputed fact that the claim of carried forward of depreciation aggregating to Rs. 1,31,03,362/- pertains to assessment years 1998-99, 2000-01 and 2001-02. Before the amendment, the time limit for carried forward of unabsorbed depreciation was for period not more than 8 assessment years immediately succeeding the assessment years for which the aforesaid allowance was first computed. However, by the Finance Act, 2001 an amendment was brought under section 32(2), whereby, restriction of 8 years for the carried forward and set off of unabsorbed depreciation was removed. This precise issue has been answered by Hon'ble Gujarat High Co....
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.... its amendment by Finance Act, 2001, read as under:- 'Where in the assessment of the assessee full effect cannot be given to any allowance under clause (ii) of sub-section (1) in any previous year owning to there being no profits or gains chargeable for that previous year or owing to the profits or gains being less than the allowance, then, the allowance or the part of allowance to which effect has not been given (hereinafter referred to as unabsorbed depreciation allowance), as the case may be,- (i) shall be set off against the profits and gains, if any, of any business or profession carried on by him and assessable for that assessment year; (ii) if the unabsorbed depreciation allowance cannot be wholly set off under clause (i), the amount not so set off shall be set off from the income under any other head, if any, assessable for that assessment year; (iii) if the unabsorbed depreciation allowance cannot be wholly set off under clause (i) and Clause (ii), the amount of allowance not so set off shall be carried forward to the following assessment year and- (a) it shall be set off against the profits and gains, if any, of any business or prof....
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....years." 36. The purpose of this amendment has been clarified by Central Board of Direct Taxes in the Circular No.14 of 2001. The relevant portion of the said Circular reads as under :- "Modification of provisions relating to depreciation 30.1 Under the existing provisions of section 32 of the Income-tax Act, carry forward and set off of unabsorbed depreciation is allowed for 8 assessment years. 30.2 With a view to enable the industry to conserve sufficient funds to replace plant and machinery, specially in an era where obsolescence takes place so often, the Act has dispensed with the restriction of 8 years for carry forward and set off of unabsorbed depreciation. The Act has also clarified that in computing the profits and gains of business or profession for any previous year, deduction of depreciation under section 32 shall be mandatory. 30.3 Under the existing provisions, no deduction for depreciation is allowed on any motor car manufactured outside India unless it is used (i) in the business of running it on hire for tourists, or (ii) outside in the assessee's business or profession in another country. 30.4 The Act has al....
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....orward till the time it is set off against the profits and gains of subsequent years. 38. Therefore, it can be said that, current depreciation is deductible in the first place from the income of the business to which it relates. If such depreciation amount is larger than the amount of the profits of that business, then such excess comes for absorption from the profits and gains from any other business or business, if any, carried on by the assessee. If a balance is left even thereafter, that becomes deductible from out of income from any source under any of the other heads of income during that year. In case there is a still balance left over, it is to be treated as unabsorbed depreciation and it is taken to the next succeeding year. Where there is current depreciation for such succeeding year the unabsorbed depreciation is added to the current depreciation for such succeeding year and is deemed as part thereof. If, however, there is no current depreciation for such succeeding year, the unabsorbed depreciation becomes the depreciation allowance for such succeeding year. We are of the considered opinion that any unabsorbed depreciation available to an assessee on 1st day of....