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2011 (11) TMI 776 - ITAT MUMBAI

2011 (11) TMI 776 - ITAT MUMBAI - TMI - ITA No. 6428/Mum/2009 - Dated:- 30-11-2011 - D. Manmohan (Vice President [Mz]) And Rajendra Singh (Accountant Member) For the Appellant : O. A. Mao For the Respondent : F. V. Irani ORDER Rajendra Singh (Accountant Member) This appeal by the revenue is directed against the order dated 22.9.2009 of CIT(A) for the assessment year 2006-07. The only dispute is regarding setting off of brought forward business loss and unabsorbed depreciation against short term .....

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sessment year 1998-99 to 2005-06. The assessee had also earned gain of ₹ 1,36,45,567/- from transfer of depreciable assets which had to be assessed as short term capital gain under deeming provisions of section 50. The assessee had set off unabsorbed business loss of ₹ 29,48,917/- and unabsorbed brought forward depreciation of ₹ 19,63,526/- against short term capital gain. The AO held that the brought forward business loss and unabsorbed depreciation could not be set off agains .....

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judgment of the Hon'ble Supreme Court in the case of CIT vs. Cocanada Radhaswami Bank Ltd. (57 ITR 306). CIT(A), therefore, held that brought forward unabsorbed business loss and unabsorbed depreciation has to be set off against short term capital gain which was of the nature of business income. Aggrieved by the said decision the revenue is in appeal. 3. Before us, the ld. Authorised Representative reiterated the submissions made before CIT(A) and argued that the deemed income under section .....

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. 4. We have perused the records and considered the rival contentions carefully. The dispute is regarding set off of brought forward business loss and unabsorbed depreciation against the deemed short term capital gain under section 50 of the IT Act. There is no dispute that brought forward business loss and unabsorbed depreciation can be set off against business income and, therefore, in case the short term capital gain is treated as business income, the claim of the assessee has to be allowed. .....

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