TMI Blog2016 (7) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Nikhil Pathak For The Revenue : Shri M.K. Singh ORDER PER VIKAS AWASTHY, JM : The appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-II, Nashik dated 10-01-2013 for the assessment year 2009-10. 2. The brief facts of the case as emanating from records are: The assessee filed its original return of income for the impugned assessment year on 29-09-2009 declaring total income of ₹ 49,09,660/-. The assessee filed revised return of income on 29-03-2010 declaring total income of ₹ 57,39,126/-. The case of the assessee was selected for scrutiny under CASS and accordingly notice u/s. 143(2) was issued to the assessee on 18-08-2010. During the period relevant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ld. AR contended that the authorities below have failed to appreciate that surplus earned on the sale on depreciable assets is nothing but business income arising from sale of business assets. It is only because of the deeming fiction that profit arising from sale of capital asset is treated as short term capital gains. The ld. AR prayed for reversing the findings of authorities below. 4. On the other hand Shri M.K. Singh representing the Department vehemently supported the findings of Commissioner of Income Tax (Appeals) in rejecting the claim of assessee with respect to set off of brought forward business loss of ₹ 38,67,378/- against the short term capital gains arising out of sale of plant and machinery. The ld. DR submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come. 3. The learned CIT (A) erred in not following the decision of ITAT Mumbai in Digital Electronics Ltd., V. Addol. CIT (2011) 135, TTJ, 419 and other cases relied upon by the appellant. 4. The learned CIT (A) failed to appreciate that facts in the case of Nandi Steel Ltd., V. ACIT (ITA No. 546/Bangalore/2008) were distinguishable and as such not comparable and consequently erred in rejecting appellant's claim for set off of business loss against deemed S.T.C.G. relying upon the said decision. 5. General 5.1 The appellant craves leave to add, amend, alter or delete anyone or more of the grounds of appeals as may be required in the nature and circumstances of the case. 5.2 The appellant prays leave to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation were : 4. Ground no.5 6 raised by the assessee in the appeal are as under : Ground no.5: That the learned CIT(A) erred in law and on facts that the appellant is not entitled to set off carry forward business loss of ₹ 39,99,652/- against the long term capital gain arising on sale of land used for the purpose business . Ground no.6: That the authorities below ought to have appreciated that there is no cessation of business and the appellant is entitled to set off the carry forward business loss . 7. The Special Bench of the Tribunal in the case of Nandi Steels Ltd. Vs. Assistant Commissioner of Income Tax (supra) while adjudicating the issue held as under : 10. Having heard both the parties and havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n carried on by the assessee ?. The answer to this question entirely depends on the interpretation to be given to the term of any business or profession carried on by the assessee and assessable for that assessment year for determination of the issue. It is not in dispute that the land, building and bore well sold by the assessee were used by the assessee for its business purposes. It is also not disputed that these assets were fixed assets of the assessee. The only argument of the assessee has been that they have direct nexus with the business carried on by the assessee and therefore, are business assets and any gains from the sale of such assets would also have the character of business income. We are unable to agree with this contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Act and it can also be set off only against the business income of the assessee, be it from the same business or from any other business. In the cases relied upon by the learned counsel for the assessee, the Hon'ble Supreme Court was dealing with the cases of the assessee's whose business was dealing in securities also and it was thus held that these securities were trading assets and therefore, the income therefrom though to be computed under the head income from securities does not lose the character of business income . But in the case of Express Newspapers Ltd. (supra) the facts of the case are little different and after taking into consideration the facts of the case therein, the Hon'ble Supreme Court has held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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