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TMI Blog2015 (5) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... orward losses and moreover, there was change in shareholding and therefore, the claim of brought forward loss was not allowed u/s 79 of the I. T. Act, 1961. 3. Ld. A.R. on the other hand invited our attention to the relevant finding of Ld. CIT(A) and submitted that brought forward losses were due to unabsorbed depreciation and were not carry forward losses and, therefore, Section 79 was not applicable. It was submitted that Hon'ble Supreme Court in the case of CIT Vs Shubh Laxmi Mills Ltd. 249 ITR 795 S.C. has clearly held that Section 79 applies only to carry forward of set off of losses and does not include carry forward of depreciation and unabsorbed depreciation. Ld. A.R. submitted that various High Courts including Kerala and Madr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y. 2009-10 enclosed. From the said computation forming part of return of income it is thus abundantly clear that the assessee has claimed set off in respect of "unabsorbed depreciation" only without claiming any set off in respect of losses". From the extract of Tax audit report filed before the AO being Annexure 4 of the letter dated 24.10.11 before the AD it is clear that even though the asses e - w s having brought forward balance of "business losses" also, however the assessee has claimed set off in respect of "unabsorbed depreciation" only which is abundantly clear from the Return of Income (supra) and this fact has itself been admitted by the AO in the first line of its order. The assessee has thus not claimed any set off on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant it has claimed brought forward and set off of depreciation of Rs. 62,36,736/- from the income of Rs. 93,25,494/- as shown in the P&L account. It has returned the gross total income of Rs. 30,88,758/-. The ITR 6 on the file shows in the Schedule BFLA, (giving details of income after set off of brought forward losses of earlier years) that the appellant had not claimed brought forward loss set off, in fact it had claimed brought forward depreciation set off of Rs. 62,36,736/-. In reply to notice u/s 143(2)/142(1) of the Act dated 21.07.2011 the assessee had replied to the AO on 24.08.2011 stating clearly at point 4 "clause 18 of your notice: There in no loss carried forward for the A.Y. 2009-10." 6. The legal proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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