9911796707
TMI Blog2014 (4) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... 77 - BOMBAY HIGH COURT] followed - the disallowance has to be worked out by the AO on some 'reasonable basis' and not rule 8D in so far as the assessment years prior to 2008-09 are concerned – as the authorities below have computed the disallowable amount as per rule 8D, such computation cannot be upheld – thus, the order is set aside and the matter is remitted back to the AO for fresh consideration – Decided in favour of Assessee. Denial of benefit of set off - Unabsorbed depreciation against capital gains – Held that:- The decision in M/s Suresh Industries Pvt Ltd Vs ACIT [2012 (11) TMI 674 - ITAT MUMBAI] followed - unabsorbed depreciation can be set off against any income and the brought forward of unabsorbed depreciation is treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condone the said delay and proceed to decide the appeal. 3. In Ground No 1, the assessee has agitated the action of the Ld.CIT(A) in partly confirming the disallowance of Rs 4,15,758/- u/s 14A of the Income-tax Act read with Rule 8D of the Income Tax Rules. 3.1 Briefly stated, during the course of the assessment proceedings, the AO noticed that the assessee had made investments in shares amounting to Rs.2,96,85,000/- and debited its P L Account by a sum of Rs.32,79,745/- on account of financial expenses. According to the assessee, the investment was made for earning good returns and for which the assessee utilized its own fund and not from the loan taken from bank. However, the AO did not accept the said claim, as the assessee did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and restore the matter to the file of the AO for deciding the quantum of disallowance, as per the afore-noted judgment, after allowing a reasonable opportunity of being heard to the assessee. Resultantly, Ground No.1 is allowed for statistical purpose. 4. In Ground No 2, the assessee has agitated the action of the Ld.CIT(A) confirming the decision of the AO in denying the benefit of set off of unabsorbed depreciation claimed by the assessee against the income under the head 'capital gains'. 4.1 Briefly stated, in the computation of income, the assessee had claimed set off of its unabsorbed depreciation against the income comprising short term capital gain. According to the assessee, the assessee company had a loss of Rs.55,19, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 2001. In the said decision, the Tribunal has considered the decision of the Hon'ble Apex Court in the case of CIT Vs Virmani Indus. Pvt Ltd Ors 216 ITR 607 by observing that the ratio laid down by the Hon'ble Apex Court in the said case still hold good to support the proposition that unabsorbed depreciation can be set off against any income. Similar view has been taken by the Tribunal in the case of M/s Elma Electric Co. Pvt Ltd Vs ITO in ITA No 579/Mum/2009 wherein the earlier decision of the Tribunal in the case of M/s Suresh Industries Pvt Ltd (supra) has been relied. After noting that the earlier decisions of the Tribunal aforementioned are applicable to the facts of the present assessee, we direct the AO to allow th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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