9911796707
TMI Blog2012 (8) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... oss and unabsorbed depreciation - Decided against assessee - ITA NO.546/PN/2009 - - - Dated:- 8-6-2012 - Shri Shailender Kumar Yadav, And Shri R.K. Panda, JJ. Appellant by : Sri Sunil Pathak Respondent by : Sri R.M. Madhavi ORDER PER R.K. PANDA, AM : This appeal filed by the assessee is directed against the order dated 26-02- 2009 of the CIT(A)-II, Nashik relating to the Assessment Year 2005-06. 2. This appeal was earlier dismissed by the Tribunal for non-appearance. Subsequently the Tribunal vide order dated 15-06-2011 recalled its order, hence this is a recalled matter. 3. Facts of the case, in brief, are that the assessee is a company engaged in the manufacturing and trade of non-ferrous wires, semis, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88 w.e.f. 01-04-1989. Rejecting the explanation given by the assessee the AO held that business loss pertaining to assessment year 2003-04 and earlier years cannot be allowed to be carried forward and set off. The AO however allowed unabsorbed depreciation to be set off and carried forward. 6. In appeal, the learned CIT(A) upheld the action of the AO by holding as under : I have considered the reasons given by the AO as well as the submission of the assessee. As per the provisions of section 79 of the Act, in the case of a company, not being a company in which public are substantially interested, where a change in shareholding has taken place in a previous year, then no loss incurred in any year prior to the previous year shall be carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cannot be accepted. Hence, the action of the AO is justified . 6.1. Aggrieved with such order of the CIT(A), the assessee is in appeal before us with the following grounds : 1. The learned CIT(A) erred in holding that the provisions of section 79 were applicable to the assessee company and therefore, the losses pertaining to A.Y. 2003-04 and earlier asst. years were not allowable to be set off against the profits of the subsequent years. 2. The learned CIT(A) failed to appreciate that the provisions of section 79 were not applicable and accordingly, there was no reason to deny carry forward of losses relating to A.Y. 2003-04 and earlier asst. years and the assessee was entitled to set off the losses against the subsequent years pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the decision cited by the learned counsel for the assessee. There is no dispute to the fact that the shareholding pattern has changed on 10-09-2003 and the assessee had accumulated business losses on that date. 8.1. We find the provisions of section 79 read as under : 79. Notwithstanding anything contained in this Chapter, where a change in shareholding has taken place in a previous year in the case of a company, not being a company in which the public are substantially interested, no loss incurred in any year prior to the previous year shall be carried forw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case. In that case, the Tribunal has decided the issue in favour of the assessee on the basis of provisions of section 79(b) wherein it was held that the provisions of section 79(b) would be applied only to the year of change and not for the subsequent assessment years. However we find the provisions of section 79(b) are omitted by the Finance Act, 1988 w.e.f., 01-04- 1989. Therefore, the decision relied on by the learned counsel for the assessee cannot be applied to the facts of the present case. 11. In this view of the matter and in view of the clear provisions of section 79 we find no infirmity in the order of the learned CIT(A) and accordingly uphold the same. The grounds raised by the assessee are accordingly dismissed. 12. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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