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TMI Blog2016 (12) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd. (1995 (10) TMI 1 - SUPREME Court ). Thus when the claim has been justifiably allowed by the Assessing Officer then the same cannot be treated as a ground to invoked the provision u/s.263 of the Act because the order is not erroneous and prejudicial in the interest of revenue. - Decided in favour of assessee - I.T.A. No.3055/Mum/15, I.T.A. No.3056/Mum/15 - - - Dated:- 28-10-2016 - SHRI D. KARUNAKARA RAO, AM AND SHRI AMARJIT SINGH, JM For The Assessee : Shri Prakash Kotadia For The Department : Shri P. R. Ghosh ORDER PER AMARJIT SINGH, JM: The assessee has filed the present appeals against the order dated 26.08.2014 passed by the Commissioner of Income Tax (Appeals) 6, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the A.Y.2011-12. The above said appeals are taken up for adjudication because common question of law and facts involved therein. ITA NO.3055/MUM/2015 (Destimoney India Services Pvt. Ltd.):- 2. The brief facts of the case are that the assessee filed the return of income on 27.09.2011 showing total loss to the tune of ₹ 5,79,50,090/-. The revised return was filed on 31.03.2013 wherein total income has been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revenue. 3. That on the facts and in the circumstances of the case and without prejudice to the ground no.1 2 taken above, the ld. CIT has erred in law in holding that the issue regarding set-off of unabsorbed depreciation of ₹ 18,16,28,888/- against assessed income comprising of addition of ₹ 10,80,94,797/- made u/s.68 of the Act is debatable and therefore, outside the purview of section 154 of the Act disregarding the fact that the said set off was made as per the provisions of the Act. 4. That on the facts and in the circumstances of the case, the ld. CIT grossly erred in holding that no claim of set-off of unabsorbed depreciation was made by the appellant in the return of income disregarding the fact that in the revised return of total income, the appellant has duly set-off brought forward business loss to the extent of taxable income. 4. The assessee has also filed the application for condonation of delay as the present appeal has been filed 201 days delayed. The learned representative of the assessee has argued that the assessee filed an appeal against the order passed by the Assessing Officer which is pending and during the pendency of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbai Tribunal in the case of Suresh Industries (P.) Ltd. Vs. ACIT in ITA No.5374/Mum/2011 dated 10.10.2012 and Hon ble Ahmedabad Tribunal in ACIT Vs. Shree Raghupati Fibres Pvt. Ltd. in ITA No.256/Ahd/2011 dated 12.09.2014 and Hon ble Ahmedabad Tribunal in ITP Vs. Hytaisun Magnetics Ltd. in ITA No.2897,2898/Ahd/2008 dated 25th January 2011 and Hon ble Chandigarh Tribunal in Liberty Plywood Pvt. Ltd. Vs. ACIT in ITA No.727/Chd/2012 dated 17.12.2012 and Hon ble Madra High Court in Commissioner of Income Tax Vs. SPEL Semi Conductor Ltd. in ITA No.2490/Mad/2006 dated 10.10.2012. In view of the above said circumstances when the claim has been justifiably allowed by the Assessing Officer then the same cannot be treated as a ground to invoked the provision u/s.263 of the Act because the order is not erroneous and prejudicial in the interest of revenue. Taking into account of the above said facts and circumstances we are of the view that the CIT has passed the order dated 26.08.2014 wrongly and illegally which is not required to be sustainable in the eyes of law, therefore we set aside the same and allowed the appeal of the assessee. ITA NO.3056/MUM/2015 (Destimoney Enterprises Ltd..) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue. 3. That on the facts and in the circumstances of the case and without prejudice to the ground no.1 2 taken above, the ld. CIT has erred in law in holding that the issue regarding set-off of unabsorbed depreciation of ₹ 18,16,28,888/- against assessed income comprising of addition of ₹ 10,80,94,797/- made u/s.68 of the Act is debatable and therefore, outside the purview of section 154 of the Act disregarding the fact that the said set off was made as per the provisions of the Act. 4. That on the facts and in the circumstances of the case, the ld. CIT grossly erred in holding that no claim of set-off of unabsorbed depreciation was made by the appellant in the return of income disregarding the fact that in the revised return of total income was arrived at loss and hence question of claiming such set off did not arise. 7. The assessee has also filed the application for condonation of delay as the present appeal has been filed 201 days delayed. The learned representative of the assessee has argued that the assessee filed an appeal against the order passed by the Assessing Officer which is pending and during the pendency of the appeal, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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