9911796707
TMI Blog2014 (2) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... der consideration on 28-9-2011 declaring total income of Rs. 1,23,70,170/-. In the said year, the assessee had derived income from sale of plant & machinery and building which was offered to tax as deemed short term capital gain u/s 50 of the Income Tax Act, 1961. Against the said income, brought forward business losses of the earlier year and unabsorbed depreciation were set off by the assessee. The A.O., however, did not allow the claim of the assessee for such set off on the ground that the income from sale of plant & machinery and building was chargeable to tax as short term capital gain u/s 50 of the Act. On appeal, the ld. CIT(A) upheld the order of the A.O. on this issue relying on the decision of the Mumbai Bench of the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onics Ltd. Vs. Addl. CIT reported in 49 SOT 65 wherein the claim of the assessee for set off of brought forward business losses against the short term capital gain on sale of factory building, plant and machinery was disallowed by the A.O. on the ground that as per section 72 of the Act, the brought forward business losses could be set off only against profits and gains of business or profession. When the ld. CIT(A) upheld the decision of the A.O., the assessee preferred an appeal before the Tribunal and the Tribunal allowed the claim of the assessee for set off of brought forward business losses against short term capital gain by holding as under:- "Section 72 provides that where for any assessment year, the net result of the computation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fits are liable to be taxed under a head other than income from business and profession, the loss carried forward can be set off against such profits of the assessee. In that view of the matter, the objection raised by the authorities below are devoid of any legal substance. Therefore, the income earned in the relevant year, although not taxable as 'profits and gains from business or profession' was an income in the nature of income of busiess nevertheless. The assessee was, therefore, indeed justified in claiming set off of business losses against the income of capital gains." 4. As the issue involved in the present case as raised in ground No. 1 is similar to the one involved in the case of Digital Electronics Ltd. (supra), we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere there is current depreciation for such succeeding year the unabsorbed depreciation is added to the current depreciation for such succeeding year and is deemed as part thereof. If, however, there is no current depreciation for such succeeding year, the unabsorbed depreciation becomes the depreciation allowance for such succeeding year. We are of the considered opinion that any unabsorbed depreciation available to an assessee on 1st day of April 2002 (A.Y. 2002-03) will be dealt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001. And once the Circular No.14 of 2001 clarified that the restriction of 8 years for carry forward and set off of unabsorbed depreciation had been dispensed with, the unabsorbed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
