TMI Blog2014 (10) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... ities, we are of the view that this issue requires fresh consideration at the end of the AO. Accordingly, we set aside the order of the ld. CIT(A) on this issue and restore the same to the file of AO for his fresh examination in the light of discussion made supra. The AO is directed to examine the factual details furnished by the ld. AR and take appropriate decision in accordance with law after providing necessary opportunity of being heard to the assessee. Rejection of claim of set off of brought forward unabsorbed depreciation claimed against “Short Term Capital Gain” and “Long Term Capital Gain” - AO disallowed the said claim on the reasoning that unabsorbed depreciation, though gets merged with the current depreciation, can be carrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a fresh term loan ; and b Rejection of claim of set off of brought forward unabsorbed depreciation claimed against Short Term Capital Gain and Long Term Capital Gain 4. The facts relating to the above said issues are stated in brief. The Assessee is engaged in the business of manufacturing and also is undertaking job work of manufacturing Automobile forgings and components. The Assessee had availed loan from State Bank of India in the earlier years and defaulted in payment of loan installments. Subsequent thereto, the State Bank of India undertook rehabilitation programme and accordingly restructured the loan amount and interest amount due from the assessee. According to the restructuring scheme a sum of ₹ 7.22 crores, out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed the same and being aggrieved, the Assessee has filed this appeal before us. 6. The ld. Counsel for the Assessee submitted that the AO was not right in examining the details of restructuring during the year under consideration, since the Assessee had given effect to the restructuring programme in the financial year 2003-04 relating to the assessment year 2004-05. The ld. Counsel for the Assessee submitted that the Assessee did not make any claim for deduction u/s 43B of the Act and hence, the question of making disallowance of ₹ 7.22 crores does not arise. 7. On the contrary, the ld. DR submitted that details of restructuring were conveyed to the assessee by the bank only on 7.7.2004. Hence, the AO was justified in examinin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and the gurantors could have given their consent only after 7.4.2004, i.e., the date of sanction letter referred supra. Hence, even though the Assessee has given effect to the restructuring scheme in its books of accounts on 31.3.2004 relating to the assessment year 2004-05, yet, in our view, the said books of account is not binding on the AO, i.e., the AO is empowered to consider the tax implications of the restructuring program in the instant year, i.e., the assessment year 2005-06. 9. At the time of hearing, the ld. Counsel for the Assessee furnished the breakup details of ₹ 7.22 crores, which was converted into term loan: Outstanding for the year ended on 31.3.2002 Rs.3.77 crores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all by the tax authorities. Further, the ld. AR has rightly pointed out that Explanation 3A shall apply only for those payments for which the deduction had been allowed in assessment year 1996-97 and in the earlier years on accrual basis. However, since the Ld A.R has furnished various factual details and since they have not been examined by the tax authorities, we are of the view that this issue requires fresh consideration at the end of the AO. Accordingly, we set aside the order of the ld. CIT(A) on this issue and restore the same to the file of AO for his fresh examination in the light of discussion made supra. The AO is directed to examine the factual details furnished by the ld. AR and take appropriate decision in accordance with law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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