2019 (5) TMI 1726

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....on of Rs. 6,78,59,423/- on account of unabsorbed depreciation claimed for A.Y 1997-98. 3. Facts relating to this case are that during the course of assessment proceedings, the Assessing Officer noticed that the assessee has claimed set off of unabsorbed depreciation of Rs. 6,78,59,423/- pertaining to A.Y 1997-98. The Assessing Officer was of the firm belief that vide amendment by the Finance (No. 2) Act, 1996, the unabsorbed depreciation for A.Y. 1997-98 and earlier years could be carried forward upto a maximum period of 8 years from the year in which it was first computed and this period expired in A.Y 2005-06, the set off claimed by the assessee cannot be allowed in the year under consideration. The Assessing Officer, accordingly, disa....

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....laim for set off of unabsorbed depreciation beyond the period of 8 years has to be allowed. 9. Respectfully following the findings of the Hon'ble High Courts of Delhi and Gujarat [supra], we do not find any error or infirmity in the findings of the CIT(A). 10. For the sake of completeness of the adjudication, the assessee has moved an application u/r 27 of the ITAT Rules in the matter of appeal filed by the Revenue. The assessee contends that since the reopening of the assessment has been upheld by the CIT(A), though the quantum additions have been deleted, the assessee is eligible to contest the dismissal of the ground dismissing the reopening of the assessment while supporting the order of the CIT(A). We find force in this claim....

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....M/s. The Motor & General Finance Ltd. (PAN-AAACT2356D) for assessment year 2010-11. The assessee company has claimed and allowed setting off of unabsorbed depreciation of Rs. 8,76,43,790/- of the assessment year 2001-02 for assessment year 2010-11. The unabsorbed depreciation of the assessment year 2001-02 was carried forward and set off beyond eight years. Therefore, I have reason to believe that income of Rs. 8,76,43,790/- has escaped assessment for assessment year 2010-11." 3. The petitioner contends that 'reasons to believe' cannot stand the test of principles enunciated by this Court as those governing valid reopening of assessment by the Supreme Court in CIT v. Kelvinator of India Ltd. [2010] 320 1TR 561/187 ....

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....y the Assessment Officer, apparently quite correctly in the light of the subsequent ruling of the Gujarat High Court, was that such carry forward of the depreciation for the past years was not limited by the pre-existing Section 32(2) of the Act. which ceased to be on the Statute Book with effect from the date it was amended ie. 1-4-2002. 6. In these circumstances, in the absence of any tangible material which can be the only basis for reopening a completed assessment, the Revenue could not have issued the impugned notice. As to the applicability of General Motors India (P.) Ltd.'s case (supra), the Court is of the opinion that the view taken is sound and an added factor inhibited the Revenue from reopening the assessment. The ....