2013 (3) TMI 811

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.... the action of the learned A.O. in denying set-off of unabsorbed depreciation of Rs. 25,45,565/-and business loss of Rs. 67,980/- against the gains of Rs. 22,41,233/- on sale of depreciable assets for the year in accordance with the provisions of s.32 of the Act. b. Your appellant submits that the company had assessed unabsorbed depreciation of Rs. 25,45,565/- and business loss of Rs. 67,980/- for A.Y.2006-07which had remained to be absorbed against the income of A.Y. 2006-07 and was thus brought forward to A.Y. 2007-08 for being set off against income of that year. c. Your appellant pleads for set-off of brought forward unabsorbed depreciation and business loss against gains on sale of depreciable assets. 2. Deni....

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....tion for claim of set off of unabsorbed depreciation against the STCG. After considering the submissions of the assessee he discussed the provisions of section 32(2) of the Act. He held that the unabsorbed depreciation u/s 32(2) would become depreciation u/s 32(1) of the next year, that the same could be set off against income under the head profits and gains of business of the next year and unabsorbed depreciation would to be treated as per the provisions of section 32(2) of the Act, that section 32(2) segregated the depreciation allowance claim from the other allowances, that depreciation was an allowance that was distinctive from other allowance under the head profits and gains of business, that if there was any income left under the hea....

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.... with the Act of 1922. He further held that provisions of the present Act did not allow the carrying setting off unabsorbed depreciation of earlier years against the income of the current year. Finally held that depreciation for any assessment order could be set off only against 'profit and gains of business' and not against other head of income. 4. Before us,Authorized Representative (AR) submitted that assessee was entitled to claim unabsorbed depreciation against the current years income.He relied upon the order of the 'E' bench of the Tribunal delivered in the case of Suresh Industries (P.) Ltd. 27 TAXMANN.com 203 dt. 10.10.12.He further relied upon the casex of Shri Padmavathi Srinivasa Cotton Ginnining & Presssing Factory 125TTJ 41....

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....depreciation to be set off against any income. The case relied upon by the AR i.e. Suresh Industries (P.)Ltd., Shri Padmavathi Srinivasa Cotton Ginnining & Presssing Factory and Graham Firth Steel Products (I) Ltd. (supra) support the submissions made by the assessee.In the case of Shri Padmavathi Srinivasa Cotton Ginnining & Presssing Factory (supra)the issue to be decided by the tribunal was whether unabsorbed deprciation could be set off against STCG of that particular year ? (a) In that case the assessee had filed its return of income for AY 1999-2000 disclosing income under the heads income from business; income from STCG and income from long-term capital gains. The return was processed initially u/s.143(1) of the Act.Later on....