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TMI Blog2018 (11) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... is illegal, unjustif ied and bad in law. 2. In conf irming the order of the Assessing Off icer who was totally unjustif ied in adjusting capital gains against business losses where assessee has availed option of not adjusting business losses against capital gains and paying proper taxes on capital gains and carrying business losses." Brief facts of the case are as under: 1. Assessee filed its return of income on 25/09/08 showing total income of Rs. 47,23,747/-. The return was processed under section 143 (1) of the act and the case was selected for scrutiny. Accordingly notice under section 143(2) of the act was issued to assessee. In compliance to the statutory notices, representative of assessee appeared before the Ld.AO and filed rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AR submitted that in the present case assessee has offered the long term capital gain for taxation at 10% as per provision to section 112 (1) of the Act. He submitted that under section 71(2) assessee has an option due to the expression "may be" used by legislature of not set off the 'business loss', against income assessable under the head 'capital gains', and to carry forward set off in subsequent assessment years. He placed reliance upon following decisions: * Decision of Hon'ble Bombay High Court in case of CIT vs. Anuj A. Seth HUF reported in (2010) 3 Taxmann.com 91; * Decision of 3rd Member by Hon'ble Bombay Tribunal in case of ITO vs. C.J. Shah (1984) 101 ITD 151; * Decision of Hon'ble Pune Tribunal in case of Coated Fabrics (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case assessee has also exercised its right under section 112 of the act and has paid 10% tax on the long term capital gains, and therefore what remains to be adjusted against the business loss is the short term capital gains amounting to Rs. 10,58,675/-. The balance unabsorbed business loss amounting to Rs. 1,29,10,486/- has been carried forwarded by assessee. We do not find any infirmity in the above computation and carry forward of business loss which is in consonance with the provisions of the act We therefore do not agree with computation adopted by Ld.AO. We direct Ld.AO to allow carry forward of unabsorbed business depreciation as per computation of income filed alongwith original return under section 139(1) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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