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TMI Blog2016 (1) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... in law and on facts in directing to allow set off of accumulated losses against Long Term Capital Gain (LTCG) of Rs. 12,34,98,829/- AND Short Term Capital Gain (STCG) of Rs. 44,20,752/- even beyond 8 years." 2. Briefly stated, the relevant material facts are like this. The assessee is a sick unit under the Sick Industries (Companies) Act and the Board of Industrial and Financial Reconstruction (BIFR) has declared it to be so. Vide order dated 21st August, 2006, the BIFR has granted it certain concession which include, inter alia, the following:- "........ The Board, keeping in view the long term viability of the company, also issues following further directions for compliances by the concerned agencies :- ............... ........... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vii) To allow the carry forward of business loss and depreciation of the year for which return of income is filed late."] 3. The above order was challenged, in appeal before the "Appellate Authority for Industrial and Financial Reconstruction" by the Director General of Income Tax but, vide order dated 10.06.2008, the said appeal was rejected and it was, inter alia, observed as follows:- "12. It is not the case of DGIT that AAML has not requested or approached DGIT within reasonable time and/or AAML is not entitled to receive the reliefs and concessions. DGIT in a number of other cases have granted such reliefs to sick industrial company; however in the instant case DGIT chose not to take any action and keep the matter pending indefinit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T to comply with the provisions of the sanctioned scheme. 16. In view of the fact that the appellant company has filed the returns with justifications of reliefs and concessions on 19.06.2003 itself and having regard to the inordinate delay in granting exemption from capital gin tax, the direction was given at para 8(iv) of the impugned order dated 21.08.2006. We find no infirmity in the order passed by BIFR. The appeal, is, therefore, rejected." 4. However, in the course of the assessment proceedings, the Assessing Officer declined to give effect to the above orders. The company had claimed set off of short term capital gains of Rs. 44,20,752/- and long term capital gains of Rs. 12,35,64,620/- against unabsorbed business losses of earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Act as far as setting off of accumulated losses beyond eight years against capital gin are concerned. But still BIFR order will prevail over the inconsistent provisions of IT Act. Accordingly appellant will be eligible to set off capital gains against accumulated losses even beyond 8 years. As mentioned by the appellant, in the immediately preceding year, assessing officer in the assessment order passed on 13.10.2008 allowed set off of accumulated losses beyond 8 years against long-term capital gains of Rs. 15,87,02,368 and short-term capital gain of Rs. 1634615. Since same assessing officer himself allowed set off of accumulated losses against capital gains in the immediate preceding year, I do not understand the change in his stand th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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