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2020 (1) TMI 1053 - AT - Income TaxEnhancement order of CIT(A) - not allowing set off of unabsorbed depreciation against the income earned by the assessee - whether unabsorbed depreciation available in the hands of the assessee, where the business of the assessee has been temporarily closed and the assets leased for a short period in order to tide over the losses of business, then can the unabsorbed depreciation be adjusted against the income from property earned from leasing of the said assets? - HELD THAT:- Similar issue arose before the Tribunal in assessee’s own case in Assessment Year 2011-12 [2019 (8) TMI 1414 - ITAT DELHI] similar disallowance was made in the hands of the assessee and the set off of unabsorbed depreciation against income from house property and income from other sources was not allowed by the CIT(A)/Assessing Officer. The Tribunal relied on the ratio laid down in M/s. Suresh Industries Pvt. Ltd. relating to Assessment Year 2007-08 in [2012 (11) TMI 674 - ITAT MUMBAI] which in turn relied on the decision of Jaipuria China Clay Mines Pvt.Ltd. [1965 (11) TMI 32 - SUPREME COURT], Rajapalayam Mills [1978 (10) TMI 4 - SUPREME COURT] and Virmani Industries Pvt.Ltd. [1995 (10) TMI 1 - SUPREME COURT] and applied the said propositions vide paras 14 & 15 at pages 05 to 12 and allowed the claim of the assessee, by holding that brought forward depreciation had to be treated as current year depreciation under the provisions of section 32(2) of the Act. The Tribunal (supra) also noted that in Assessment Year 2007-08, the CIT(A) allowed the claim of set off in assessee’s own case and in Assessment Year 2013-14, the Assessing Officer himself had allowed the said claim of set off of unabsorbed deprecation against the income from house property and other sources. Assessing Officer is directed to set off brought forward unabsorbed depreciation as part of current depreciation against the income from house property and income from other source, since the brought forward unabsorbed depreciation was the depreciation of the current year. - Appeal of the assessee is allowed.
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