2018 (12) TMI 1638

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....5 under section 143(3) of the Income Tax Act, 1961 (hereinafter 'the Act'). 2. The first issue in this appeal of Revenue is against the order of CIT(A) deleting the disallowance of expenses relatable to exempt income made by the AO by invoking the provisions of section 14A read with Rule 8D of the Rules. For this Revenue has raised the following ground No. 1: - "1. On the facts and in the circumstances of the case arid in law, the ld. CIT(A) erred in deleting the disallowance made u/s 14A r.w.s. SD of Rs. 62,42,493/- ignoring the CBDT circular no. 512014 dated 12.02.2014 that disallowance u/s 14A has to be made irrespective of the fact whether any exempt income has been earned during the I year by the assessee or not." 3. At the outset,....

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.... Tax Appeal No. 749/2014, which holds that the expression "does not form part of the total income" in Section 14A of the Income Tax Act, 1961 envisages that there should be an actual receipt of the income, which is not includible in the total income, during the relevant previous year for the purpose of disallowing any expenditure incurred in relation to the said income. The Income Tax Appellate Tribunal held that the provisions of Section 14A of the Income Tax Act, 1961 would not apply to the facts of this case as no exempt income was received or receivable during the relevant previous year. It is not the case of the Assessing Officer that any actual income was received by the assessee and the same was includible in the total income. In the....

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....come that the assessee has adjusted brought forward unabsorbed depreciation against the income of the current year as under: - AY Amount 1999-2000 4,24,00,583 2000-2001 5,81,36,801 Total 10,05,37,654 8. According to AO, this set off of unabsorbed deprecation is claimed beyond 8 years and hence, not allowable. Aggrieved, assessee preferred the appeal before CIT(A), the CIT(A) relying on the earlier years allowed the claim of the assessee by following Para 11: - "11. Attention was invited to CIT(A)'s order in appellant's own case for A.Y. 2009-10 vide CIT (A)-9/ITO 5(1)(4)/436/11-12 dated 27.8.2013 and CIT(A) order dated 23.3.2016 in appellant's own case for A.Y. 2011-12 vide CIT(A)-12/1T141/DCIT 6(2)(4) /2015-16 wherei....