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TMI Blog2018 (8) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the appellant of set off of business loss of Rs. 3,81,997/- against deemed gain is untenable in law. 1.2. That the various reasons advanced by Ld.CIT(A) in rejecting above claim are contrary to the facts of the case and evidence on record. 1.3. The appellant respectfully submits that there is chargeable short term capital gain on account of sale of fixed asset. There is unabsorbed business loss and therefore the unabsorbed business loss should be set off against Short Term Capital Gain U/s.50 of the Act. 1.4. The appellant therefore submits that unabsorbed business loss of Rs. 3,81,997/- be set off from chargeable capital gain of Rs. 7,12,735/- and only the balance of chargeable gain of Rs. 3,30,737/- be taxed. 2. The brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication u/s.154 of the Act for rectification was filed by the assessee which was rejected by and under an order dated 26.09.2013 passed by the CPC against which appeal was preferred before the Ld.CIT(A) who in turn affirmed the order passed by the CPC and, hence, the instant appeal. 4. The Ld. Advocate appearing for the assessee at the time of hearing of the appeal, submitted before us that the building which was sold for a consideration of Rs. 10,70,000/- was a business asset and depreciation was also claimed on such business asset. The sale of such asset resulted in gain over the WDV. He further added that since the gain was out of business asset, it is to be considered as the business income and therefore the carried forward business l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same cannot be utilized to be for set off of the carried forward business loss of the preceding years and on this premise, the rectification application filed by the assessee has been rejected by the Ld.CIT(A). 7. On this issue we have gone through the judgments relied upon by the Ld. Advocate appearing for the assessee. The Co-ordinate Bench in this particular matter of the Digital Electronics Ltd.vs. Addl.CIT held that u/s.72 of the Act gains out of business or profession carried on by the assessee and assessable to tax though under the head other than income from business and profession of that assessment year can be set off against loss under the head 'profits and gains of business or profession' carried forward from earlier years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er any head of income in accordance with the provisions of s. 71, so much of the loss as has not been so set off is to be carried forward to the following assessment year and is allowable for being set off "against the profits, if any, of that business or profession carried on by him and assessable for that assessment year". It is thus for setting off the income that while the loss to be carried forward has to be under the head "Profits and gains of business or profession", the gains against which such loss can be set off, has to be profits of "any business or profession carried on by him and assessable in that assessment year". In other words, there is no requirement of the gains being taxable under the head "Profits and gains of business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned with the question whether or not the assessee had option of not setting off the losses incurred against the income from different sources under the head "Business income ". The issue was thus confined to the question as to how the total income for a particular assessment year is to be computed. This decision has no bearing on the issue in appeal before us. So far as the Hon'ble Supreme Court judgment in the case of Urmila Ramesh (supra) is concerned, it will have no bearing on the issue before us, because it refers to simultaneous application of s. 41(2) and s. 50 on the same amount. In contrast to that position, the short reference to s. 41(2) in the present case is to show the nature of income in contradistinction with the head ..... X X X X Extracts X X X X X X X X Extracts X X X X
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