2017 (8) TMI 236

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....1.12.2009 for assessment year 2007-08. Shri Sanjay Bhattacharya, Ld. Advocate appeared on behalf of assessee and Shri Gouten Hangshing, Ld. Departmental Representative represented on behalf of Revenue. 2. At the time of hearing Ld. AR for the assessee stated that he has been instructed not to press ground No.1, hence, same is dismissed as not pressed. 3. Solitary interconnected issue raised by assessee in ground No. 2 & 3 are that LD. CIT(A) erred in confirming the action of Assessing Officer by adding back Rs. 106,91,00,000/- as excess deduction under the provision of Sec. 115JB(2) of the Act. 4. Briefly stated facts are that assessee is a Govt. of India enterprise and engaged in the business of mining and sale of copper and ot....

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.... by assessee in the earlier years or not. However, Ld. CIT(A) disregarded the contention of the assessee and confirmed the order of AO by observing as under:- "7.3. It was also mentioned out by the appellant, that the assessment order for A.Y 2006-07 passed u/s. 143(3) on 31.12.2011, that the tax liability in that year had been determined under the normal provisions and not under MAT and viewed from that angle, there is no justification in stating, that any unabsorbed book depreciation had been actually set off in that year reducing the amount available for subsequent year. While it is true that tax in AY 2006- 07 had been charged under normal provisions, it is also seen that computation u/s. 115JB had been made in the order. It is well ....

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.... been relevant and thus he erred in confirming the addition of Rs. 106,91,00,000." 6. Ld. AR for the assessee submitted that the Circular No. 495 of 1987 dated 22.09.1987 relied by the Ld. CIT(A) was issued under the provision of Sec. 115J of the Act and therefore the same cannot be relied upon as book profit was determined under the provision of Sec. 115JB of the Act, whereas Ld. DR for the Revenue submitted that there is no information whether the unabsorbed depreciation has actually been written off in the books of account or not of the assessee and he vehemently relied on the order of Authorities Below. 7. We have heard rival contentions of both the parties and perused the materials available on record and the order of Authorities....

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....bsorbed depreciation as per the books and as per the provisions of section 115JB of the Act. In this regard, we also rely in the order of Hon'ble Tribunal in the case of DCIT Vs. Binani Industries Limited in ITA 144/Kol/2013 for the AY 2009-10 dated 2.3.2016 wherein it was held as under:- "We have heard the rival submissions and perused the materials available on record. We are in agreement with the arguments of the Learned AR that the losses ( both cash loss and depreciation loss) would continue to remain in the books of ITA No.144/Kol/2013-A-AM M/s. Binani Industries Ltd 13 accounts till it is wiped off by earning profits by the assessee company and accordingly the same would be available for reduction from book profits u/s 115JB of th....