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TMI Blog2021 (8) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... held to be eligible for carried forward against Property Dealing income of Rs. 25,00,000/- for the year. 2. That Learned CIT(A) has erred in law and facts in computing the income from Property Dealing Business under Deemed Income in place of Income from Business. 3. That appellant craves leave to add, alter, amend or to substitute the above grounds of appeal either before or at the time of hearing of case." 2. The only effective ground raised by the assessee in this appeal is against the declining the claim of set off of Business Loss and unabsorbed depreciation of scooter business against property dealing income of Rs. 25,00,000/-. 3. The facts giving rise to the present appeal are that a survey operation u/s 133A of the Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the assessee placed reliance on the judgement of Hon'ble Supreme Court in the case of Lakshmichand Baijnath v. Commissioner of Income-tax, [1959] 35 ITR 416 (SC). Ld. Counsel for the assessee further submitted that under the identical facts, in the case of M/s. Kirtiman Cements Packaging Industries Ltd. vs ACIT in ITA No.2777, 2778/Del/2017 order dated 15.05.2018 relating to Assessment Years 2012- 13 & 2013-14 wherein the Tribunal was pleased to allow set off all the losses which were denied by the authorities below. He contended that CBDT vide its Circular No.11/2019 has clarified that prior to 01.04.2017 set off of losses against the deemed income is allowable. Ld. Counsel for the assessee also placed reliance on the decision of ACE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ltd., in ITA.No.118 of 2015 dated 25.01.2016 in which the Departmental Appeal have been dismissed on account of low tax effect. Therefore, the only reason given by the A.O. for denying the claim of assessee company no more survives. It may also be noted here that every income is to be assessed under section 14 of the I.T. Act and loss to be adjusted under section 70 to 72 of the I.T. Act. In order to assess an income under the Head "Income" and there must be some express provision of law as is held by the Hon'ble Supreme Court in the case of D.P. Sindhu 273 ITR 1. Each income is to be assessed under five Heads of income, Otherwise, the same is not taxable at all. Similar provisions for set-off of loss are defined under Sections 70 to 72 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the depreciation of assessee-company against the income surrendered during the course of survey. The appeal of assessee-company is accordingly allowed." 9. Moreover, Para 4 enclosed at Pages 24 to 25 of the CBDT Circular No.11/2019 reads as under:- 4. "Thus keeping the legislative intent behind amendment in section 115BBE(2) vide the Finance Act, 2016 to remove any ambiguity of interpretation, the Board is of the view that since the term 'or set off of any loss' was specifically inserted only vide the Finance Act 2016, w.e.f. 01.04.2017, an assessee is entitled to claim set-off of loss against income determined under section 115BBE of the Act till the assessment year 2016-17." 10. In the light of the aforesaid decisions an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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