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2016 (7) TMI 1083 - ITAT MUMBAI

2016 (7) TMI 1083 - ITAT MUMBAI - TMI - Rectification of mistake - credit for unabsorbed deprecation / loss was wrongly granted and that mistake was required to be corrected - Addition made U/S 115JB - disallowance of brought forward un-absorbed depreciation applying the provisions of section 79 - Held that:- The position that emerges before us is that assessee was entitled to get the credit of unabsorbed depreciation or unabsorbed losses, whichever is less. It is seen on the basis of chart whic .....

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T(A) had rightly quashed the order passed u/s 154. No interference is called for in the order of the ld.CIT(A), and therefore, the same is hereby upheld. - Decided against revenue - I.T.A. No.ITA No.4463/Mum/2012 - Dated:- 15-6-2016 - SHRI JOGINDER SINGH (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACOUNTANT MEMBER) For The Appellant : Surbhi Sharma For The Respondent : Suresh Malik ORDER Per ASHWANI TANEJA, AM This appeal has been filed by the revenue against the order of the Ld.Commissioner of I .....

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at as per the provisions of sec. 79, loss prior to A.Y 1999-00 is not allowed to be carried forward and set off." l(b). "On the facts and in the circumstances of the case and in law, the Id. CIT (A) erred in deleting the enhancement made to the book profit u/s 154 by way of disallowance of brought forward un absorbed depreciation, without appreciating that the disallowance was made after issue of proper notice u/s 154 and after giving proper opportunity of being heard to the assessee.& .....

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ice of the bench that the Assessing Officer misunderstood the facts of the case in A.Y. 1999-2000. The Assessing Officer had rejected the claim of carry forward of unabsorbed losses by applying the provisions of section 79. Against the said order appeal was filed before the Ld. CIT(A) wherein order of the Assessing Officer was reversed and Assessing Officer was directed to allow carry forward of earlier year losses. The ld.counsel also drew our attention on a chart showing year-wise break up of .....

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correct and, therefore, rightly reversed by the Ld.CIT(A;hence, the order of the Ld.CIT(A) should be upheld and appeal of the revenue should be dismissed. 4. We have gone through the orders passed by lower authorities and statements made by both the sides before us. In this case, original assessment order was passed u/s 143(3) dt. 31-12-2008. Subsequently, the Assessing Officer issued notice u/s 154 on 11-03-2010 proposing to rectify the earlier assessment order on the ground that credit for una .....

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ete facts were analysed by Ld.CIT(A) and it was noted by him that the ld.AO misunderstood the facts of the case and wrongly passed order u/s 154 whereas set off of unabsorbed depreciation aggregating to ₹ 308.89 lakhs was rightly granted by the Assessing Officer himself in the original order passed u/s 143(3). The brief submissions of the assessee before the Ld.CIT(A) and finding of Ld.CITA)are reproduced as under:- 4.1 (C) The appellant's AR further argued that even on merits there is .....

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any mentioning figures of business loss as well as unabsorbed depreciation right from AYr.1 994-95 (first year of appellant company ) to date. The A.R. further submitted photocopies of Profit and Loss Account of the appellant company for all these years to support this statement. The A.R. submitted that the statement clearly shows that even after adjustment of profits for A.Yrs.2000-01, 2001-(12, 2002-02, 2003-04 and 2004-05 the unabsorbed business loss was ₹ 24,76,40,OOO/- whereas the una .....

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considered view that the A O.'s action of passing the order u/s.154 of the Act was completely lacking in respect of providing a reasonable opportunity to he appellant as it was a primary requirement on her pat of he Assessing Officer in view of the explicit provisions of section 154(1) and 154(3) of the Act. Thus, taking note of the Apex Court judgement in the case of T.S. Balaram, ITO vs. Volkat Brothers (19761) reported in 82 ITR page 50 and Hero Cycles Ltd & Others reported in 228 ITR .....

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mpany's inception from F.Yr.1993-94 to F.Yr.2003-04 which is based on the audited accounts of the appellant company which were filed by the appellant company while filing return of income. Having taken note of this chart submitted by the AR, I also find that the claim of the appellant company in aforesaid para 4.1 of this order is completely justified and correct. All these facts for calculation of amount eligible for deduction u/s.115JB were avai!able with the A.O alongwith the return of in .....

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the assessment order. Accordingly, the same is deleted. Thus, appellant's this ground of appeal is decided in favour of the appellant. 6. It is thus noted from the perusal of the above that the CIT(A) had analysed the facts in detail and found that there was no mistake in the original assessment order and credit of the unabsorbed depreciation was rightly granted to the assessee at ₹ 308.89 lakhs. It is further noted by us on perusal of order passed by ld.CIT(A) dated 30-09-2004 for A.Y .....

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