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Gujarat High Court

Commisisoner Of Income Tax vs Arunoday Mills Ltd....Opponent(S) on 7 April, 2015

Author: M.R. Shah

Bench: M.R. Shah, S.H.Vora

         O/TAXAP/210/2015                                ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        TAX APPEAL NO. 210 of 2015
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           COMMISISONER OF INCOME TAX....Appellant(s)
                            Versus
               ARUNODAY MILLS LTD....Opponent(s)
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Appearance:
MR PRANAV G DESAI, ADVOCATE for the Appellant(s) No. 1
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        CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
               and
               HONOURABLE MR.JUSTICE S.H.VORA
                     Date : 07/04/2015


                              ORAL ORDER

(PER : HONOURABLE MR.JUSTICE M.R. SHAH)

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 17.10.2014 passed by the learned Income Tax Appellate Tribunal, Rajkot Bench, Rajkot in ITA No.68/Rjt/2014 for A.Y. 2007-2008 by which, the learned Tribunal relying upon the decision of the Division Bench of this Court in the case of General Motors India Pvt. Ltd. V/s. Deputy Commissioner of Income Tax reported in (2013)354 ITR 244 (Guj) has allowed the said appeal preferred by the assessee and has held that unabsorbed depreciation is covered by the provisions of Section 32(2) of the Income Tax Act, as amended by Finance Act, 2001 and was, therefore, available for carry forward and set off against the profits and gains of subsequent years, the Revenue has preferred the present tax appeal with the following proposed substantial question of law:-

O/TAXAP/210/2015 ORDER "Whether the ITAT is justified in law as well on facts in holding that unabsorbed depreciation is covered by the provisions of Section 32(2) of the Act, as amended by the Finance Act, 2001 and therefore, the assessee is entitled to carry forward and set off against profit and gains of subsequent year?"

2. Shri Pranav Desai, learned advocate appearing on behalf of the Revenue has made only one submission that against the decision of the Division Bench of this Court in the case of General Motors India Pvt. Ltd. (supra), upon which, the reliance has been placed by the learned Tribunal, the Revenue preferred appeal/Special Leave Petition before the Hon'ble Supreme Court and the Hon'ble Supreme Court has dismissed the said Special Leave Petition on the ground of limitation, however, keeping the question of law open and, therefore, we may admit the present appeal and consider the question of law.

2.1. The aforesaid cannot be accepted. It is required to be noted that, as such, Shri Desai, learned advocate appearing on behalf of the Revenue has failed to pursued us to take a contrary view than the view taken by the Division Bench of this Court in the case of General Motors India Pvt. Ltd. (supra). Unless and until we are pursueded to take a contrary view than the view taken by the Division Bench of this Court in the case of General Motors India Pvt. Ltd. (supra) and the matter is referred to the larger Bench and the larger/full Bench takes a contrary view than the view taken by the Division Bench of this Court in the case of General Motors India Pvt. Ltd. (supra), the decision of the co-ordinate Bench in the case of General Motors India Pvt. Ltd. (supra) is binding to this Court being a co-ordinate Bench. It is true that against the aforesaid decision of the Division Bench of this Court, the Revenue did prefer Special Leave Petition before the Hon'ble Supreme Court and the Hon'ble Supreme Court dismissed the said Special Leave Petition, however, keeping the question of law open. However, in future, the question of law is kept open and to be considered by the Hon'ble Supreme Court. So far as this Court is Page 2 of 3 O/TAXAP/210/2015 ORDER concerned, this Court is bound by the decision of the co-ordinate Bench in the case of General Motors India Pvt. Ltd. (supra).

3. Under the circumstances, when the proposed question of law is squarely covered by the decision of the Division Bench of this Court in the case of General Motors India Pvt. Ltd. (supra) and when the learned Tribunal has, as such, followed the binding decision of the High Court i.e. this Court in the case of General Motors India Pvt. Ltd. (supra), there is no substance in the present appeal and no substantial question of law arises to be considered by this Court in the present appeal following the aforesaid decision of the Division Bench of this Court by which, it is held that the provisions under Section 32(2) as amended by the Finance Act, 2001 would allow the unabsorbed depreciation allowance available to be carried forward to the succeeding years and if any unabsorbed depreciation or part thereof could not be set off till A.Y. 2002-2003 then it would be carried forward till the time it is set off against the profits and gains of subsequent years. Therefore, we dismiss the present appeal.

(M.R.SHAH, J.) (S.H.VORA, J.) Hitesh Page 3 of 3