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2010 (7) TMI 620 - AT - Income TaxDeduction u/s 80IB - Set-off against carried forward business losses - Unabsorbed brought forward depreciation - The assessee company filed a return of income declaring a net income of Rs. 17,26,270/-, which inter-alia included a claim of deduction u/s 80IB of the Act amounting to Rs. 7,39,829/r. - The assessment u/s 143(3) of the Act was finalized on 28.12.2007 whereby the total income was determined at Rs. 32,66,100 - As per the Commissioner, the total income declared by the assessee, included set-off of carry forward losses of Rs. 31,62,376/-. survey u/s 133A - The assessee had offered additional income of Rs. 70,00,000/- over and above the income disclosed in the regular books of account - According to the Commissioner, the entire income of Rs. 70,00,000 which was liable to be assessed as deemed income u/s 69/69A/69B of the Act and the same was not eligible to be set-off against carried forward business losses - the assumption of jurisdiction by the Commissioner u/s 263 of the Act in principle, we modify the order of the Commissioner by directing the Assessing Officer to allow opportunity to the assessee to explain nature and source of income comprised in the amounts surrendered during the survey in the form of stocks, cash in hand and unexplained expenditure amounting to Rs. 70,00,000/ - Consijtiering the submissions of the assessee, the Assessing Officer shall adjudicate as to whether the same is assessable as 'business income' as contended by the assessee or under Sections 69/69A/69B/69C of *the Act as professed by the Commissioner - the case laws relied by the appellant, since the propositions canvassed therein are not in conflict with the principles laid down by the Hon'ble Supreme Court in the case of Malabar Industrial Company Ltd.(supra), which have been kept in mind by us, while adjudicating the appeal of the assessee. - The appeal of the assessee is partly allowed
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