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2013 (5) TMI 609 - AT - Income TaxJurisdiction power u/s 263 by CIT(A) - CIT(A) directing AO to disallow deduction of brokerage expenses - Held that:- On the basis of the documents placed on record before the CIT and also here the service charges are claimed in the course of regular business transactions for helping the assessee in sale of the property and 2% commission is reasonable when compared to the other quotations placed on record. Further, there is no prejudice caused to the Revenue as the same amount was offered to tax in the hands of the M/s. Ovira Logistics Pvt. Ltd. therefore, unable to agree with the findings of the CIT and his direction in this regard to disallow the entire amount. Claim of depreciation allowed by the AO was found to be not correct as there being a business loss even current year's depreciation was not liable to be set off against STCG and the same is liable to be carried forward - Held that:- With reference to the issue of claim of unabsorbed depreciation and the findings of the CIT order of the CIT is erroneous in the eyes of law. As the AO did examined the claim of depreciation and allowed set off according to the provisions of the Act. The CIT's reliance on section 32(2) is not only misleading and wrong but also against the provisions of sections 70 & 71 which allows such set off. As decided CIT vs. RPIL Signalling Systems Ltd. [2008 (9) TMI 583 - Madras High Court] wherein held that the assessee was entitled to set off the unabsorbed depreciation brought forward against the capital gains. There is no need to discuss provisions of sections 70, 71 & 32(2) elaborately as the CIT erred in coming to the conclusion that current year's depreciation cannot be allowed to be set off against capital gains. Therefore the observations and directions of the CIT are against the provisions of law itself. Thus no hesitation in cancelling the order u/s 263 and allowing the grounds raised by the assessee.
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