Crossword Book Stores P. Ltd, Mumbai vs Department Of Income Tax
- CitationI.T.A. No.3219/MUM/2013
Ratio decidendi
The rule this decision rests on
The tribunal, faced with conflicting authority from its own Special Bench in Times Guaranty Ltd. and a High Court decision (General Motors India Pvt. Ltd., Gujarat HC), follows the High Court view and upholds relief granted in appeal. Where the Tribunal has before it a decision of the High Court of another jurisdiction (here, the Gujarat High Court) on the construction of section 32(2) of the Income Tax Act, 1961 as amended by the Finance Act, 2001, and no decision of the jurisdictional High Court on the point, the Tribunal is bound to follow that High Court decision in preference to its own earlier Special Bench decision, and the unabsorbed depreciation of assessment years 1997-98 to 2001-02 that could not be set off until assessment year 2002-03 remains available for carry forward to succeeding years until set off against profits and gains.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE INCOME TAX APPELLATE TRIBUNAL "C " BENCH, MUMBAI सव ी आई.पी.बंसल, या यक सद य. एवं ी राजे , लेखा सद य के सम BEFORE SHRI I.P. BANSAL, JM AND RAJENDRA, AM
आयकर अपील सं./I.T.A. No.3219/MUM/2013 ( नधा रण वष / Assessment Year : 2009-10 The Asstt. Commissioner of Income बनाम/ M/s. Crossword Book Stores Pvt. Tax, Central Circle -29. Ltd., th Vs. R.No.411, 4 Floor, Plot No.C-30, G-Block, Opp.SIDBI, Aaykar Bhavan, MK Road, BKC, Bandra (East), Mumbai 400020 Mumbai 400 051.
थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AABCP 7596G (अपीलाथ /Appellant) .. ( यथ / Respondent)
Appellant by Shri Premanand J Respondent by Shri Arvind Sonde सनु वाई क" तार$ख / Date of Hearing : 13/05/2015 घोषणा क" तार$ख /Date of Pronouncement : 13/05/2015
आदे श / O R D E R
PER I.P.BANSAL, J.M:
This is an appeal filed by the Revenue and it is directed against order passed by Ld. CIT(A)-40, Mumbai dated 25/2/2013 for assessment year 2009-10. Grounds of appeal read as under:
1 "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the claim of carry forward of unabsorbed depreciation pertaining to the period A.Y. 1997-98 to 2001-02 during which the limitation of 8 years was existing
" 1 (a). "That in doing so, the Id. CIT(A) erred in relying on the decision of the Hon'ble Gujarat High Court ignoring the order of the Hon'ble Special Bench ITAT Mumbai in M/s. Times Guaranty Ltd. 131 TTJ 256 and in absence of any decision of the jurisdictional High Court on the issue."
2 "The appellant craves to leave to add, to amend and / or to alter any of the grounds of appeal, if need be."
2 आयकर अपील सं./I . T . A . N o . 3 2 1 9 / M U M / 2 0 1 3 ( नधा रण वष / A s s e s s m e n t Y e a r : 2 0 0 9 - 1 0
3 "The appellant, therefore, prays that on the grounds stated above, the order of the Ld. CIT(A)-40, Mumbai, may be set aside and that of the Assessing Officer restored".
2. The AO did not allow benefit of carry forward unabsorbed depreciation pertaining to A.Y 1997-98to 2001-02 following Special Bench decision of ITAT in the case of Times Guaranty Ltd. 131 TTJ 256. Ld. CIT(A) has granted such benefit on the basis of Hon'ble Gujarat High Court decision in the case of General Motors India Pvt. Ltd. vs. DCIT dated 23/8/2012, wherein their Lordships have held that provisions of section 32(2) of the Income Tax Act, 1961(the Act), as amended in Finance Act,2001, would allow unabsorbed depreciation allowance available in assessment years 1997-98, 1999-2000, 2000-01 and 2001-02 to be carried forward to the succeeding years and if any unabsorbed depreciation or part thereof could not be set off till the assessment year 2002-03, then it would be carried forward till the time it is set off against the profits and gains of subsequent years.
3. Ld. DR relied upon the order passed by AO and also on the grounds of appeal.
4. On the other hand, Ld. AR submitted that Mumbai Tribunal is taking consistent view as per decision of Hon'ble Gujarat High Court even after considering Special Bench decision in the case of Times Guaranty Ltd. (supra). He has placed before us decision of Mumbai ITAT in the case of Hindustan Unilever vs. Addl. CIT, (2013) 22 ITR (Trib) 737 (Mum) and also the decision of Hon'ble Gujarat High Court in the case of General Motors India Pvt. Ltd. vs. DCIT, 354 ITR 244 (Guj).
5. We have heard both the parties and their contentions have carefully been considered. After hearing both the parties, respectfully following the decision of Hon'ble Gujarat High Court in the case of General Motors India Pvt.Ltd. vs. DCIT (supra) we hold that there is no error in the relief granted by Ld. CIT(A). We decline to interfere.
3 आयकर अपील सं./I . T . A . N o . 3 2 1 9 / M U M / 2 0 1 3 ( नधा रण वष / A s s e s s m e n t Y e a r : 2 0 0 9 - 1 0
6. In the result, the appeal filed by the Revenue is dismissed.
Order pronounced in the open court on 13/05/2015 आदे श क" घोषणा खल ु े यायालय म+ ,दनांकः 13/05/2015 को क" गई ।
Sd/- Sd/- राजे (RAJENDRA) आई.पी.बंसल (I.P.BANSAL)
लेखा सद य /ACCOUNTANT MEMBER या यक सद य /JUDICIAL MEMBER मंब ु ई Mumbai; ,दनांक Dated 13/05/2015 आदे श क त"ल#प अ$े#षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. आयकर आय0 ु त(अपील) / The CIT(A)-
4. आयकर आय0 ु त / CIT
5. 1वभागीय त न3ध, आयकर अपील$य अ3धकरण, मब ंु ई / DR, ITAT, Mumbai
6. गाड फाईल / Guard file.
आदे शानस ु ार/ BY ORDER, स या1पत त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मबुं ई / ITAT, Mumbai व. न.स.Vm , Sr. PS
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