| COURT: | Supreme Court |
| CORAM: | A.K. Sikri J., Rohinton Fali Nariman J. |
| SECTION(S): | 32 |
| GENRE: | Domestic Tax |
| CATCH WORDS: | Depreciation |
| COUNSEL: | - |
| DATE: | May 15, 2015 (Date of pronouncement) |
| DATE: | May 19, 2015 (Date of publication) |
| AY: | 1991-92 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 32: The assessee has the right to disclaim depreciation in its entirety. However, it cannot claim depreciation for the current year and disclaim unabsorbed depreciation | |
The assessee claimed the depreciation allowance insofar as it pertained to the current year. At the same time, it did not want to claim the set off of the unabsorbed depreciation allowance of the previous years. The Supreme Court had to consider whether it is open to the assessee to invoke the provisions of Section 32 of the Act by claiming depreciation of the current year, but at the same time choose not to make a claim of set off of unabsorbed depreciation allowance of the previous years. HELD by the Supreme Court rejecting the plea:
Once the unabsorbed carried forward depreciation has become a part of the depreciation of the current year, it is not open to the assessee to bifurcate the two again and exercising its choice to claim the depreciation of the current year under Section 32(1) of the Act and take a position that since unabsorbed depreciation of the previous years is not claimed, it cannot be thrusted upon the assessee. The position would have been different if the assessee had not claimed any depreciation at all. However, once the depreciation is claimed and while giving deductions the depreciation is to be set off against the profits of the current year prior to the unabsorbed carried forward investment allowance, it is the entire depreciation, namely, the depreciation of the current year as well as the unabsorbed carried forward depreciation, which is to be taken into account as by virtue of the fiction created under Section 32(2) of the Act, carried forward depreciation also partakes the character of depreciation of the current year. This scrambled egg cannot be unscrambled now. Otherwise, it would amount to negating the legal fiction that is created by the said provision, even to the limited extent. In fact, the case falls within the ambit of the said limited extent of legal fiction and gets covered by it Commissioner of Income-Tax, Kanpur v. Mother India Refrigeration Industries P. Ltd. (1985) 155 ITR 711 referred)
IMPROMPTU
This , as viewed by anyone knowing the historical background, an instance to be earmarked, of the apex court being obliged to keep revisiting and deciding the point of law ,- rather being taken for a merry-go-round, albeit that being loud and clear,- with no scope for agitating afresh; also the apex court being called upon to ‘opine’ yet again, despite knowing that is the settled position in law, hence no longer an open ‘issue’. Perhaps, as a matter of prudence, keeping in mind the common good of taxpayers, including of the assessee herein, the dispute ought not to have been allowed, to travel beyond the itat stage.
No wonder that courts are groaning for long under the pain of volume of cases pending adjudication; and for years/decades.
i wonder how corporate works?
if the corporate works this way, country would go to dogs, pls understand corporate india