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2017 (6) TMI 821 - AT - Income TaxNon setting off carried forward business loss against profit earned by the assessee on sale of depreciable asset u/s 50 - Held that:- The assessee is entitled to set off of brought forward business losses against the capital gains, thus, the observation of the Ld. Commissioner of Income Tax (Appeal) that contrary decision, mentioned in the order, were not considered is of no help to the Revenue because, the coordinate Bench duly considered the decision of Hon'ble Gujarat High Court in CIT vs Milind Trading Co. Pvt. Ltd. (1993 (12) TMI 22 - GUJARAT High Court ) as well as Hon'ble Apex Court in CIT vs Cocanada Radhaswamy Bank Ltd.[1965 (4) TMI 11 - SUPREME Court ]. Even otherwise, the ratio laid down in the order of the Tribunal in the case of Nirmal Plastic Industries and Shri Padmavati Shrinivasa Cotton Ginning and Processing Factory (2009 (3) TMI 246 - ITAT VISAKHAPATNAM) further supports the case of the assessee. - Decided in favour of assessee. Disallowance of business loss/bad debt - Held that:- In view of the amendment in the taxation laws with effect from 01st April, 1989, the requirement of demonstrating that the debts has become bad has been dispensed with and only requirement remains that it should be “written off” in books of accounts of the assessee, which has been further clarified by CBDT Circular No.551 dated 23/01/1990. Our view find support from the ratio laid down in CIT vs Brilliant Tutorials Pvt. Ltd. (2007 (1) TMI 147 - MADRAS High Court ). Hon’ble Apex Court, later on, in T.R.F. Ltd. vs CIT (2010 (2) TMI 211 - SUPREME COURT ), considering the provision of section 36(1)(vii), prior to April, 1, 1989 and post amendment held that it is not necessary for the assessee to establish that the debt, in fact, has become irrecoverable. Mere written off in its accounts is enough, thus, following the aforesaid we allow the ground of the assessee.
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