9911796707
TMI Blog2023 (7) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... declaring total income at "Nil". Petitioner also had filed, alongwith return, note to computation of income. In the original return of income, petitioner computed the total income at "Nil" after claiming set off of brought forward unabsorbed depreciation against the long term capital gains and business income. The total income of petitioner was computed as follows : Particulars Rs. Business Income 87,71,91,932 Long term capital gains 116,23,53,853 Short term capital gains 1,46,56,987 Less Set off of unabsorbed depreciation AY 1998-99 18,64,85,685 AY 1999-00 54,33,63,761 AY 2000-01 44,71,61,394 117,70,10,840 Less Set off of busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt term capital gains. In this case, assessment u/s 143 (3) of the IT Act was completed on 16.11.2009, assessing the total income at Rs. Nil after adjustment of brought forward unabsorbed depreciation of Rs .93,04,19,347/- against business income and adjustment of Rs. 117,70,10,840/- against income from capital gains. The income was assessed at Rs. 189,01,74,827/- u/s 115JB of the IT Act. The income from capital gains was adjusted against brought forward unabsorbed depreciation for AYs 2000-01 to 2003-04. It has been judicially held by the Hon'ble ITAT bench Mumbai in the case of Times Guaranty that unabsorbed depreciation (before AY 2002-03) can be set off only against income under head 'Profits and Gains of Business & Profession' w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o submitted that even in the affidavit in reply opposing the petition, infact, there is an admission that petitioner had disclosed unabsorbed depreciation for Assessment Year 2000-2001 and 2001-2002. Mr. Sanghavi states that even assuming for the sake of argument that respondent no.2 is correct in stating that the unabsorbed depreciation could not have been adjusted against income from capital gains still that would not amount to conferring jurisdiction on respondent no. 2 because there was no failure to truly and fully disclose. Moreover, Mr. Sanghavi submitted that the Hon'ble Gujarat High Court in the case of General Motors India Pvt. Ltd. V/s. Deputy Commissioner of Income Tax (2013) 354 ITR 244 (Guj) has allowed unabsorbed depreciation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Return of Income and would amount to failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for A/y 2006- 2007. 10. This cannot take respondents' case any further because more than four years have expired since the end of the relevant assessment year and the only basis on which it can be re-opened was if there was failure to disclose fully and truly all material facts. There is not even such an allegation in the reasons to believe. Moreover, the Assessing Officer in the assessment order under Section 143(3) of the Act passed on 16th November 2009 has considered and discussed this issue under the head "profits and gains of business or profession". Therefore, in our view, it is nothi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sight, and it cannot be said that the income chargeable to tax for the relevant assessment year had escaped assessment by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts. The Income tax officer had all the material facts before him when he made the original assessment. He cannot now take recourse to Section 147 (a) to remedy the error resulting from his own oversight." 11. Whether it is a disclosure or not within the meaning of Section 147 of the Act would depend on the facts and circumstances of each case and nature of document and circumstances in which it is produced. The duty of the assessee is to fully and truly disclose all primary facts necessary for the purpose of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
