2022 (11) TMI 1034

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....rovisions and scheme of the Act it be held that, the disallowance of Rs.44,070/- under section 14A made by the AO and that confirmed by the 1st appellate authority is unwarranted, unjustified, contrary to the provisions of the act and facts prevailing in the case. It may further be held that no disallowance / addition is warranted in the case of the appellant. The addition/disallowance so made and confirmed by the Ld. Appellate Authority below be deleted. The appellant be granted just and proper relief in this respect. 2. On facts and circumstances prevailing in the case and as per provisions and scheme of the Act it be held that, the addition of Rs,.75,43,846/- on account of incorrect carry forward of unabsorbed depreciation made by the....

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....cts of the case as emanating from the assessment order are stated herewith. There was unabsorbed depreciation which has been tabulated as under: A.Y. Depreciation Capital Loss (Long Term) 2000-01 22378322 0 2001-02 32786425 0 2002-03 27842312 0 2003-04 22803680 125690 2004-05 4491176 749225 2005-06 1540236 0 2006-07 0 9339507 2007-08 966796 0 Total 112808948 10214422 2.1 The Assessing Officer(AO) did not allow unabsorbed depreciation which was prior to A.Y. 2002-03. The findings of the AO are as under: "Unabsorbed depreciation of A.Y. 2002-03 and subsequent years shall only be available for set off against business income of A.Y. 2010-11. As the aggregate of such brought forward....

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....t be allowed to be set off against the income of A.Y. 2010-11 as it does not fall within the ambit of amended section 32(2) of the Act. Ld.CIT (A) has referred the decision of Hon'ble Gujarat High Court and then merely stated that he was inclined to rely upon special bench decision of Mumbai ITAT and confirmed the AO's order on this issue. The ld.CIT(A) has erred in doing so. As per the rule of binding precedence, the ld.CIT(A) was duty bound to follow the Hon'ble High Court's decision, when the facts were identical. Without distinguishing on facts, the ld.CIT(A) cannot ignore the decision of Hon'ble High Court. Hon'ble Bombay High Court has held in the case of K. Subramanian, Ito vs Siemens India Ltd. 156 ITR 11 (Bom) as under on the issue....

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....e cannot be allowed in this Assessment year. (c) We find that the impugned order of the Tribunal while allowing the Assessee - respondents' claim follows the decision of the Gujarat High Court in General Motors India (P.) Ltd. v. Dy. CIT [2013] 354 ITR 244/[2012] 210 Taxman 20/25 taxmann.com 364 wherein on identical facts it was held that the unabsorbed depreciation for the Assessment Year 1997-98 upto Assessment Year 2001-02 could be allowed to be set off, if it was still unabsorbed on 1st April, 2001. The above decision also placed upon the CBDT circular No. 14 of 2001 dated 22nd November, 2001 to hold that any unabsorbed depreciation which is available on 1st day of April, 2001 would be dealt with in accordance with the provisions....