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2015 (8) TMI 265 - ITAT PUNERevision proceedings u/s. 263 - Assessing Officer has not examined the issue as Whether the claim made by the assessee was factually correct and also whether relevant conditions are fulfilled as per the provisions of section 72 and section 32 of the Act or not? - AO in his order has categorically mentioned that due to limitation of time the assessee’s version of brought forward losses is relied upon and allowed the claim of the assessee, thus findings of the Assessing Officer are erroneous and prejudicial to the interest of Revenue.Held that:- Applying the ratio laid down by the Hon’ble Gujarat High Court in General Motors India Pvt. Ltd. Vs. DCIT (2012 (8) TMI 714 - GUJARAT HIGH COURT ) to the facts of the present case, the issue of allowability of unabsorbed depreciation relating assessment year 1999-2000 against the income arising in assessment year 2008-09 is to be set off and consequently, the order passed by the Assessing Officer in this regard cannot be said to be prejudicial to the interest of Revenue. Consequently, the revisionary powers exercised by the Commissioner against the order of assessment which is not prejudicial to the interest of Revenue, even where the order passed by the Assessing Officer was erroneous, cannot be exercised, since the twin conditions have not been fulfilled in the case. In view thereof, we reverse the directions of the Commissioner in this regard and uphold the order of Assessing Officer in allowing the set off of unabsorbed depreciation claimed against the business income in computation of income. The directions of the Commissioner in this regard are thus, reversed and the order of Assessing Officer is restored We find that the issue in the present appeal is identical to the one already adjudicated by the Tribunal in the case of M/s. SAB Miller Breweries Pvt. Ltd. Vs. ACIT [2015 (8) TMI 307 - ITAT PUNE]. Accordingly, we hold that there is no infirmity in the order of Assessing Officer in allowing the assessee to carry forward unabsorbed depreciation for the assessment years 1996-97 and 1997-98 to be set off against the profit of the assessee from business or profession from assessment year 2006-07. - Decided in favour of assessee.
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