C/TAXAP/599/2019 ORDER IN HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL NO. 599 of 2019 PRINCIPAL COMMISSIONER OF INCOME TAX-4 Versus M/S BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD. Appearance: MRS MAUNA M BHATT(174) for Appellant(s) No. 1 CORAM:HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date : 09/09/2019 ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1.00. This Tax Appeal under section 260(A) of Income Tax Act, 1961 (for short Act ) is at instance of revenue and is directed against order passed by Income Tax Appellate Tribunal, Ahmedabad, B-Bench in ITA No.2121/Ahd/2017 dated 28/03/2019 for A.Y. 2014-15. 2.00. revenue has proposed following two questions of law for consideration of this Court :- [A]. Whether on facts and in circumstances of case and in law, Hon'ble ITAT was justified in dismissing tax appeal of Revenue relying on its judgement in case of General Motors (P) Ltd. Vs. DCIT reported in (2012) 354 ITR 244, without appreciating that unabsorbed Page 1 of 5 Downloaded on : Sat Oct 26 10:41:37 IST 2019 C/TAXAP/599/2019 ORDER depreciation cannot be carried forward beyond eight assessment years as specified in section 32(2)(iii)(b) of Act as amended by Finance (No.2) Act, 1996 w.e.f. 1st April, 1997 and also that Hon'ble Supreme Court has kept Question of Law open in case of General Motors (P) Ltd.? [B] Whether on facts and in circumstances of case and in law, Hon'ble Tribunal was justified in not appreciating that in instant case eight years expired prior to instant A.Y. 2014-15 and that assessee was not entitled for carrying forward and setting off unabsorbed depreciation of Rs.38,01,74,403/- for A.Y. 2001-02 against income of A.Y. 2014-15? 2.00. ITAT while dismissing appeal preferred by revenue has observed as under :- Heard rival contentions; perused relevant materials available on record. We have carefully considered order passed by Co-ordinate Bench in ITA Nos.1993-1994/Ahd/2016 for Assessment Years 2009-10 and 2012 -13, operative portion whereof is as follows : We have heard rival contentions and perused material on record carefully. During course of appellate proceedings before us ld. counsel has brought to our notice that Co-ordinate Bench of ITAT Ahmedabad vide ITA No.1993/Ahd/2013 dated Page 2 of 5 Downloaded on : Sat Oct 26 10:41:37 IST 2019 C/TAXAP/599/2019 ORDER 03.05.2017 in case of Gujarat Lease Finance Ltd. has decided identical issue in favour of assessee. part of judicial findings and principles laid down by Hon'ble Jurisdictional High Court in case of General Motors Pvt. Ltd. are reproduced here as under :- We are of considered opinion that any unabsorbed depreciation available to assessee on 1st day of April 2002 (A.Y. 2002- 03) will be dealt with in accordance with provisions of section 32(2) as amended by Finance Act, 2001. And once Circular No.14 of 2001 clarified that restriction of 8 years for carry forward and set off of unabsorbed depreciation had been dispensed with, unabsorbed depreciation from A.Y. 1997-98 upto A.Y. 2001-02 got carried forward to assessment year 2002-03 and became part thereof, it came to be governed by provisions of section 32(2) as amended by Finance Act, 2001 and were available for carry forward and set off against profits and gains of subsequent years, without any limit whatsoever. relevant part of decision of Co-ordinate Bench of ITAT decided in case of Gujarat Lease Finance Ltd. vide ITA No.2393/Ahd/2013 dated 03/05/2017 is reproduced as hereunder :- Page 3 of 5 Downloaded on : Sat Oct 26 10:41:37 IST 2019 C/TAXAP/599/2019 ORDER 6. We have heard rival contentions. We have also perused judicial pronouncement delivered by Hon'ble High Court of Gujarat in case of General Motors India (P) Ltd. Vs. DCIT (2012) 25 TAXMANN.COM which was elaborated in detail by Ld. CIT(A) in his order as supra in this order. We have also perused judicial pronouncement of Hon'ble Gujarat High Court in case of CIT Vs. Gujarat Themis Biosyn Ltd. [2014] 44 taxmann.com 204 (Gujarat) in which after considering judgement given in General Motors India (P) Ltd. it was held that carry forward of unabsorbed depreciation concerning impugned assessment years could be set off in subsequent years without any set time limit. In view of above judicial pronouncement on issue and elaborate findings of ld. CIT(A), we do not find any reason to interfere in decision of ld. CIT(A). Respectfully following decision of Co- ordinate Bench as supra, we do not find any error in finding of ld. CITA(A), therefore, appeal of revenue is dismissed. In result, both appeals of revenue are dismissed. 3.00. Thus, Appellate Tribunal relied on order passed by Co-ordinate Bench in case of assessee itself. said order passed by Co-ordinate Bench of Page 4 of 5 Downloaded on : Sat Oct 26 10:41:37 IST 2019 C/TAXAP/599/2019 ORDER ITAT was carried in appeal by revenue before this Court by filing Tax Appeal No.1042 of 2018. said appeal came to be dismissed by this Court vide order dated 21/8/2018. In overall view of matter, we are convinced that no case is made out for interference. appeal, therefore, fails and is hereby dismissed. Sd/- (J. B. PARDIWALA, J) Sd/- (A. C. RAO, J) RAFIK.. Page 5 of 5 Downloaded on : Sat Oct 26 10:41:37 IST 2019 Principal Commissioner of Income-tax-4 v. Banaskantha Dist. Oil Seeds Growers Union Ltd