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TMI Blog2011 (12) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... devoid of merit and was dismissed . The relevant assessment year for the purpose of Section 10A(6) of the Act year which immediately follows the block of ten assessment years from assessment years - The loss incurred by the assessee under the head profits and gains of business or profession has to be set off against the profits and gains if any, of any business or profession carried on by such assessee -as the profits and gains under Section 10A is not be included in the income of the assessee at all, the question of setting off the loss of the assessee of any profits and gains of business against such profits and gains of the undertaking would not arise - appeals in favour of the respondent-assessee and against the revenue. - IT APPEAL N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2003. In response to the said notice, the assessee filed a return of Income on 29.08.2003. The Assessing Officer, after hearing the representative of the assessee, by order dated 03.03.2005, overruled the objections of the assessee and held that the assessee is not entitled for carry forward and set off of unabsorbed depreciation for the assessment years 1993-1994 and 1994-1995 against the income determined for the assessment year 2001-2002. Being aggrieved by the said order of the Assessing Officer, the assessee preferred appeal before the Commissioner of Income Tax (Appeals) - IV, Kochi. 2.2 The appellate authority, by order dated 28-11-2005, allowed the appeal in part and held that the assessee was entitled for carry forward and set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year 2003-2004. Accordingly, the revisions authority held that both the orders of the Assessing Officer i.e., assessment order dated 03.03.2005 and the order dated 11.01.2006 giving effect to the order of the appellate authority were erroneous as well as prejudicial to the interest of the revenue and set aside the said orders of the Assessing Officer and directed the Assessing Officer to redo the same setting off the unabsorbed depreciation before allowing exemption under Section 10A of the Act. Being aggrieved by the said order of the revisional authority dated 26.03.2007, the assessee preferred appeal before the Income Tax Appellate Tribunal, Bangalore Bench, in ITA Nos. 494, 495 and 701/Coch/2007. 2.4 The Tribunal, by order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f on 09.08.2011. 6. We have given careful consideration to the contentions of the learned counsel appearing for the parties and scrutinized the material on record. 7. The material on record would clearly show that the only question of law that would arise for consideration between the parties to this appeal is as to whether the profit for the purpose of deduction under Section 10A of the Act should be allowed without setting off of unabsorbed loss and depreciation or including the same. The fact that the said question has already been answered by this Court in favour of the assessee and against the revenue in I.T.A No. 78/2011 and connected cases disposed of on 09.08.2011 is not in dispute. In the said appeals, the following substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all, the question of setting off the loss of the assessee of any profits and gains of business against such profits and gains of the undertaking would not arise. Similarly, as per Section 72(2), unabsorbed business loss is to be first set off and thereafter unabsorbed depreciation treated as current years depreciation under Section 32(2) is to be set off. As deduction under Section 10A has to be excluded from the total income of the assessee, the question of unabsorbed business loss being set off against such profit and gains of the undertaking would not arise. In that view of the matter, the approach of the assessing authority was quite contrary to the aforesaid statutory provisions and the appellate Commissioner as well as the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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