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TMI Blog2013 (8) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sec. 32(2) of the Act, the same is also be allowed to be set off from the long-term capital gains - Following decision of Suresh Industries (P) Ltd. Vs ACIT [2012 (11) TMI 674 - ITAT MUMBAI] - Decided in favour of assessee. - I.T.A. No. 579/Mum/2009 - - - Dated:- 5-7-2013 - Shri H. L. Karwa And Shri N. K. Billaiya, AM,JJ. For the Appellant : Shri Hiro Rai For the Respondent : Shri Abanikant Nayak ORDER Per N. K. Billaiya, AM:- This appeal by the assessee is directed against the order of the Ld. CIT(A)-1, Thane dt.14.11.2008 pertaining to A.Y. 2005-06. 2. The assessee has raised following 3 substantive grounds of appeal: 1. The Ld. CIT(A) has erred in confirming the order of the AO, adopting the value det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order. The AO was of the opinion that the reasons given by the assessee are not sufficient to be considered as it clearly violate the provisions of Sec. 50C of the Act. Thereafter, the AO went on to recompute the capital gains by adopting the Stamp duty value at ₹ 1,23,09,500/-. 4. Aggrieved by this, the assessee carried the matter before the Ld. CIT(A) but without any success. The Ld. CIT(A) was convinced that provisions of Sec. 50C are clearly applicable and has been rightly invoked by the AO. 5. Aggrieved by the finding of the Ld. CIT(A), assessee is before us. 6. The Ld. Counsel for the assessee submitted that the action of the AO is not in consonance with the provisions of Sec. 50C(2) of the Act. It is the say of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Sec. 50C, then in our humble opinion , he should have first referred the matter to the Valuation Officer. The AO has erred in not referring the matter to the Valuation Officer. The Ld. CIT(A) has also erred in not asking the AO to refer the matter for valuation, therefore, in the interest of justice and fair play, we restore this issue back to the files of the AO. The AO is directed to refer the matter of valuation to the appropriate valuation authority as per the provisions of the Act after giving reasonable opportunity of being heard to the assessee. Ground No. 1 2 raised by the assessee are allowed for statistical purposes. 9. Ground No. 3 relates to the denial of the set off of brought forward unabsorbed depreciation of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld like to refer to the decision in ITA No. 5375/M/2011 in the case of Suresh Industries (P) Ltd. Vs ACIT 54 SOT 450 wherein one of us (AM) is the author of the said judgement ,has held that current year's depreciation is to be allowed as set off from the Long term capital gains and brought forward depreciation is to be treated as current year's depreciation as per the legal fiction of Sec. 32(2) of the Act, the same is also be allowed to be set off from the long-term capital gains. Respectfully following this decision of the Tribunal, we direct the AO to first determine the long term capital gain as per the directions given hereinabove and thereafter allow the claim of set off of unabsorbed depreciation from the same. This ground r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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