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TMI Blog2016 (1) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, CO No. 135/Ahd/2011 - - - Dated:- 8-12-2015 - Pramod Kumar, AM And S. S. Godara, JM For the Appellant : Rajeev Agrawal For the Respondent : Dhiren Shah ORDER Per Pramod Kumar, AM 1. By way of this appeal, the Assessing Officer has challenged correctness of the order dated 14th March, 2011 passed by the learned CIT(A), in the matter of assessment under section 143(3) of the Income Tax Act, 1961 ('the Act' hereinafter), for the assessment year 2007-08, on the following ground:- The Ld. CIT(A)-VI, Ahmedabad erred in law and on facts in directing to allow set off of accumulated losses against Long Term Capital Gain (LTCG) of ₹ 12,34,98,829/- AND Short Term Capital Gain (STCG) of ₹ 44,20,752/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company on sale of assets and future Income, till such unabsorbed loss/depreciation is reduced to nil. ii) Exemption of capital gains from capital gain tax, if any. The company may be allowed to set off capital gains against accumulated losses. iii) Exemption from applicability of section 41(1) of the Income Tax Act. iv) For the purpose of 8 years limitation period for carry forward of losses, 8 years period would be counted from the financial year 2002-2003. vi) To exempt the company from the applicability of provisions of sections 115JB of the Income Tax Act, 1961. vii) To allow the carry forward of business loss and depreciation of the year for which return of income is filed late. ] 3. The above order was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the DGIT on the DRS was that the appellant had filed their returns along with the justification for reliefs and concessions. On 23.01.2004, BIFR sanctioned the revival scheme directing the consideration of grant of exemption from capital gains tax. Thereafter, the appellant company filed an application on 19.09.2005 for grant of reliefs and concessions as per the sanctioned scheme. The appellant brought to the notice of BIFR that the reliefs and concessions as provided in the sanctioned scheme were not implemented by DGIT on 05.08.2006 and BIFR passed the impugned order on 21.08.06 directing the DGIT to comply with the provisions of the sanctioned scheme. 16. In view of the fact that the appellant company has filed the returns w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order nowhere talks of brought forward business losses. The limitation of 8 years applies to brought forward business losses. However accumulated losses have no such limit. The set off is of the accumulated losses against capital gain which are otherwise not permissible under IT Act. Since SICA has overriding power as discussed earlier, the set off of capital gain is permitted by BIFR against accumulated losses. Therefore while implementing the order of BIFR, assessing officer has to apply the order even if it is not consistent with the provisions of IT Act. Since the order of BIFR is inconsistent with the provisions of IT Act as far as setting off of accumulated losses beyond eight years against capital gin are concerned. But still BIFR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arried against the appellate order, before Hon'ble High Court. On these facts, in our considered view, the stand of the learned CIT(A) cannot be faulted. In any case, as noted by Hon'ble Delhi High Court in the case of DGIT vs. BIFR [2011) 57 DTR 53 (Del)], the BIFR direction bind the Revenue authorities. 8. In view of these discussions, as also bearing in mind entirety of the case, we approve the conclusions arrived at by the learned CIT(A) and decline to interfere in the matter. 9. In the result, appeal of the Assessing Officer is dismissed. 10. Coming to the Cross Objection filed by the assessee, learned Counsel for the assessee fairly accepts that it supports the relief granted by the leaned CIT(A) and does not raise an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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