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2021 (1) TMI 826 - AT - Income TaxRevision u/s 263 - Error in allowing set off of loss - HELD THAT:- The total loss of the assessee for A.Y. 2009-10 was determined in the assessment completed under section 143(3)/147 at ₹ 10,67,21,089/- as against the loss of ₹ 19,10,76,892/- declared by the assessee and since the entire loss so determined was already set off against the income of the assessee for A.Y. 2011-12 and 2012-13, no loss as determined in the assessment for A.Y. 2009-10 was available for set off against the income of the assessee for A.Y. 2015-16 when the assessment order under section 143(3) for A.Y. 2015-16 came to be passed by the Assessing Officer on 18.12.2017. Thus an error in the order of the Assessing Officer passed under section 143(3) in allowing the set off of loss of ₹ 3,99,13,429/- pertaining to A.Y. 2009-10 and the same being prejudicial to the interest of the Revenue, the order passed by the Assessing Officer under section 143(3) dated 18.12.2017 was liable to the revised as rightly held by the ld. Principal CIT in his impugned order passed under section 263. Working made by the ld. Principal CIT regarding the excess set off of loss pertaining to A.Y. 2009-10 alleged to be wrongly allowed by the Assessing Officer is not correct and this matter should have been left open by him to the Assessing Officer for making the working on the basis of actual loss pertaining to A.Y. 2009-10 as determined in the relevant assessment. We accordingly modify the impugned order of the ld. Principal CIT passed under section 263 to this extent. Appellate order passed by the ld. CIT (Appeals) for A.Y. 2009-10 allowing the entire claim of the assessee for depreciation and the effect given by the Assessing Officer to the said order finally determining the loss of the assessee-company for A.Y. 2009-10 on which a strong reliance was placed by assessee at the time of hearing before us, we may clarify that the Assessing Officer after having given the effect to the order of the ld. Principal CIT and determined the loss of the assessee for A.Y. 2009-10 at ₹ 19,10,76,892/-, which, inter alia, included business loss of ₹ 3,99,13,429/-, which was available for set off against the income of the assessee for A.Y. 2015-16 as claimed by the assessee, is duty bound to allow such set off by passing a consequential order. Appeal of the assessee is partly allowed.
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