2017 (9) TMI 111

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.... the assessee against order u/s 154 of the Act without verifying the fact that S.72 of the Act provides that where the net result of the computation under the head 'profit and gain of business or profession' is a loss to the assessee and such loss including depreciation cannot be wholly set off against income under any other head of the relevant year, so much of the loss as had not been set off shall be carried forward to the following A.Y. to be set off against the 'profits and gains of business and profession'. 2. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any grounds of appeal at any time before or during the hearing of this appeal'. 2. The brief facts of the case are that the assessee....

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....d by the order passed u/s 154 of the Act the assessee appeared before the First Appellate Authority and the Ld. CIT(A) after considering the detailed submissions allowed the appeal of the assessee. 4. Ld.DR submitted that the A.O. had rightly reopened the assessment u/s 154 of the Act. He stated there was apparent mistake on record that the assessee has shown under the other income to the rent income and misc. Income under other heads and therefore these cannot be set off from the brought forward depreciation loss from the earlier years. Therefore it can be rectified u/s 154 of the Act and he submitted that the case laws relied upon by the assessee are on different footings, therefore, not applicable. 5. On the other hand Ld.AR reiter....

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....4-1997, as clarified by the Finance Minister in his Budget Speech and CBDT in Circular No. 762, dated 18-2-1998, is that unabsorbed depreciation of the assessee pertaining to the assessment year 1996-97 is liable to be considered as a part of the depreciation allowance for the assessment year 1997-98 and, therefore, it shall be entitled to be set off either against the income from business or profession or against income under any other head resulting in the hands of the assessee for the assessment year 1997-98." Similarly, the ITAT Delhi in the case of Sain Processing & Weaving Mills v ACIT [2008] 19 SOT 560 (DELHI) has held as under: "8. In view of the above discussion and decisions of co-ordinate Benches discussed hereinabove, we d....

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....dings relating to the assessment year 1965-66, th assessee claimed that unabsorbed depreciation, to the extent it perta machinery utilised in the new business, should be brought forward and against the profits of the new business. The claim was rejected by the Income Tax Officer and by the Appellate Assistant Commissioner. The Tribunal, however upheld the assessee's claim. The view of the Tribunal was affirmed by the High Court. Upholding the decision of the High Court, the Apex Court held that if after setting off the unabsorbed depreciation allowance relating to the assessment year 1956-57 against the income for the following assessment years, any depreciation allowance still remained unabsorbed, it could be set off against the income....