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TMI Blog2005 (8) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act could not be sustained in the absence of any mistake apparent from record and no rectification was permissible. The impugned order of the Tribunal is, therefore, upheld - - - - - Dated:- 24-8-2005 - Judge(s) : D. A. MEHTA., MS. H. N. DEVANI. JUDGMENT The judgment of the court was delivered by D.A. Mehta J.-The Income-tax Appellate Tribunal, Ahmedabad Bench "C", has referred the following question of law under section 256(1) of the Income-tax Act, 1961 ("the Act"), at the instance of the Commissioner of Income-tax, Surat: "Whether, in law and on facts of the case, the Income-tax Appellate Tribunal was right in holding that when the judgment of the hon'ble Supreme Court was there before passing the assessment order, and des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply Industrial Co. Ltd. v. CIT [1978] 113 ITR 84. In the rectification order, in the first instance, he granted deduction of current depreciation, followed by unabsorbed business loss, followed by unabsorbed depreciation and, thereafter, unabsorbed development rebate. Thus, he worked out the total income at Rs. nil and thereafter, has worked out development rebate and relief under section 80J which are required to be carried forward. In effect, therefore, by virtue of the rectification order, relief under section 80P which was granted in the original assessment came to be withdrawn. The assessee carried the matter in appeal before the Commissioner of Income-tax (Appeals), who vide order dated March 16, 1989, came to the conclusion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precedence over the deductions available for the year under consideration or the items of unabsorbed business loss, unabsorbed depreciation and unabsorbed development rebate take precedence over deductions for the year under consideration. The issue as such is not finally resolved, though in so far as the unabsorbed depreciation is concerned, the apex court in the case of CIT v. Mother India Refrigeration Industries P. Ltd. [1985] 155 ITR 711, laid down that, in computing the profits and gains of a business for the current year, depreciation for the current year must be deducted first before deducting the unabsorbed carried forward business losses of earlier years. It is further laid down that the legal fiction treating unabsorbed carried f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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