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2012 (12) TMI 733 - AT - Income TaxJurisdiction power u/s 263 by CIT(A) - set off of unabsorbed depreciation allowance brought forward from Assessment Year 1998-99 - Held that:- Section 263 of the Income-tax Act seeks to remove the prejudice caused to the revenue by the erroneous order passed by the Assessing Officer. There is no enquiry by the AO whatsoever on the issue in dispute. He just accepted the claim of set off of earlier year unabsorbed depreciation in the assessment year under consideration. Being so, the CIT assumed jurisdiction u/s. 263. Thus it is to be opined that subject matter of the revision is pending before the Special Bench for adjudication and the AO passed the assessment order without an iota of discussion on the issue of whatsoever as such the CIT exercised his powers u/s. 263 to revise the order of AO which was in conformity with the order of the Special Bench and invoking the provisions of section 263 is justified. Set off of unabsorbed depreciation allowances carried forward from assessment year 1996-97 and 1998-99 against income relating to assessment year 2007-08 - This issue is covered against the assessee by the order of the Special Bench in the case of DCIT Versus Times Guaranty Ltd. [2010 (6) TMI 516 - ITAT, MUMBAI] wherein held that unabsorbed depreciation relating to assessment years 1997-98 to 1999-2000 is to be dealt with in accordance with the provisions of section 32(2) as applicable to assessment year 1997-98 to 1999-2000 and, therefore, assessee cannot claim set off of unabsorbed depreciation relating to assessment year 1997-98 to 1999-2000 under any head of income other than “income from business or profession” in assessment years 2003-04 and 2004-05 - issue is decided against the assessee. when there are several decisions of non-jurisdictional High Courts expressing contrary views, the Tribunal is free to choose to adopt that view which appeals to it. For this purpose, we place reliance on the order of the Special Bench in the case of Kanel Oil & Export Industries Ltd. vs. JCIT, (2009 (8) TMI 806 - ITAT AHMEDABAD-C). Settlement of dues with Stressed Assts Stabilisation Fund IDBI - Held that:- Perusuing the material on record & going through the impugned assessment order there is no discussion in the assessment order on the impugned issue. There is no enquiry on this issue. The order is erroneous and prejudicial to the interest of revenue as discussed in earlier paras of this order. Accordingly the order of the CIT(A) confirmed.
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