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TMI Blog2015 (7) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... By applying the decision in case of Fakir Mohmed Haji Hasan (2000 (8) TMI 44 - GUJARAT High Court ) as explained in case of Radhe Developers Incia Ltd. (2009 (4) TMI 21 - GUJARAT HIGH COURT ), the same cannot be declined. In the result, no question of law arises. Tax appeal is, therefore, dismissed. - Decided against revenue. - TAX APPEAL NO. 290 of 2013 - - - Dated:- 4-4-2013 - MR. AKIL KURESHI AND MS SONIA GOKANI, JJ. Manav A. Mehta for the Appellant ORDER Akil Kureshi, J. The revenue is in appeal against the judgment of the Income Tax Appellate Tribunal ('the Tribunal' for short) raising following substantial question of law: 1. Whether in the facts and circumstances of the case and in law the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer, however, basing reliance on the decision of this Court in case of Fakir Mohmed Haji Hasan v. CIT [2001] 247 ITR 290, rejected the assessee's claim. 4. Assessee carried the matter in appeal and contended that the assessee had declared such income in its profit and loss account. After adjusting the business loss suffered during the year under consideration net income of ₹ 15.40 lacs was offered for taxation. Before the Appellate Authority, the assessee has placed reliance on the decision of this Court in case of Dy. CIT v. Radhe Developers India Ltd. [2010] 329 ITR 1/[2011] 198 Taxman 58 (Mag.) to suggest that the decision in case of Fakir Mohmed Haji Hasan (supra) has been explained. 5. Commissioner (Appeals) allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of both the sides and on careful examination of the facts, we are of the considered view that the AO has incorrectly appreciated the facts as also the law involved in this case. We have noted that the impugned amount was disclosed under the head other income as miscellaneous income. The Schedule-12 of the balance sheet contained sales along with other income and the total of this Schedule was at ₹ 11,30,85,527/-. As per the profit loss account, it was carried over as income of sale of products and other income . Against the said total income, as expenditure of ₹ 11,03,85,047/- was claimed. A resultant profit of ₹ 29,16,195/- was computed. This was the profit which was computed by the AO and made part of the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he current year could not have been set off against such income. He submitted that in Radhe Developers India Ltd.'s case (supra) this Court had not, in any manner, disagreed with the view in case of Fakir Mohmed Haji Hasan (supra) and thus, such ratio still hold the field. 8. We, however, find that Section 71 of the Act permits an assessee to set off loss other than that of capital gains against income from other head. This very issue came-up for consideration before the Madras High Court in case of Chensing Ventures (supra). The Division Bench of the Court considered the issue in following manner: 6. Heard counsel. The Assessing Officer has not given any reason whatsoever to deny the set off of the business loss against the inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, no reasons were given by the Assessing Officer to deny the benefit of Section 71 of the Act. The benefit provided under Section 71 of the Act cannot be denied and the learned Standing Counsel appearing for the Revenue is also unable to explain or give reasons why the assessee is not entitled to the benefit of Section 71 of the Act. The reasons given by the Tribunal are based on valid materials and evidence and the same is in accordance with the provisions of Section 71of the Act. We find no error or legal infirmity in the impugned order. 9. We may further notice that the decision in case of Fakir Mohmed Haji Hasan (supra) came-up for consideration in case of Radhe Developers Incia Ltd. (supra),it was observed as under: The decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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