2021 (10) TMI 171

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....ncome Tax Appellate Tribunal. The subject matter of the appeal pertains to the Assessment Year 2008-09. The appeal was admitted by a Bench of this Court on the following substantial question of law: "Whether on the facts and in the circumstances of the case and in law, the Tribunal is right in law in setting aside the disallowance of set off of unabsorbed depreciation by following the judgment of Gujarat High Court in the case of GENERAL MOTORS PRIVATE LIMITED., even though the amendments madder to Section 32(2) of the Act which removed the gap of 8 years in allowing set off of unabsorbed depreciation is prospective and effective only from 1-4-2002?" 2. Facts leading to filing of this appeal briefly stated are that the assessee is a par....

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....ed by the Commissioner of Income Tax (Appeals) allowing the unabsorbed depreciation. It is pertinent to note that against the aforesaid order, the revenue has not filed any appeal. 4. The revenue, being aggrieved by the order of the Tribunal dated 06.07.2017, filed a miscellaneous petition which was dismissed by the Tribunal by an order dated 25.05.2018. In the aforesaid factual background, this appeal has been filed. 5. Learned counsel for the revenue submitted that the Tribunal grossly erred in dismissing the appeal preferred by the revenue by placing reliance on the decision of Gujarat High Court in 'M/s. GENERAL MOTORS INDIA PVT. LTD. Vs. DEPUTY COMMISSIONER OF INCOME-TAX' 354 ITR 244 (GUJ). It is further submitted that the am....

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.... the Commissioner of Income Tax (Appeals) allowing unabsorbed depreciation. It is pointed out that the aforesaid order was not challenged by the revenue. It is further submitted that infact the substantial question of law involved in this appeal does not arise for consideration.   7. We have considered the submissions made on both sides and have perused the record. Admittedly, the revenue has not challenged the order dated 06.07.2017 passed by the Income Tax Appellate Tribunal by which the appeal preferred by the revenue was dismissed and the order passed by the Commissioner of Income Tax (Appeals) allowing the claim of the assessee for unabsorbed depreciation was upheld. In order to invoke Section 154 of the Act, twin conditions are ....