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TMI Blog2019 (4) TMI 1486X X X X Extracts X X X X X X X X Extracts X X X X ..... utational exercise once again. Therefore, without answering the aforesaid questions of law framed for our consideration, we remand the matter back to the learned Assessing Authority in the present case for Assessment Year 2001-2002 for fresh consideration. The Assessee will be free to raise his factual as well as legal contentions before the learned Assessing Authority and the Assessing Authority will be free to take a fresh view in the matter. The Assessing Authority may pass fresh orders within six months from today. - T.C.A.No.90 OF 2009 - - - Dated:- 3-4-2019 - Dr. Justice Vineet Kothari And Mr. Justice C.V. Karthikeyan For the Appellant : Mr.V.S.Jayakumar For the Respondent : Mr.T.Ravi Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith effect from 1.4.88 and also by virtue of Direct Taxation (Amendment) Laws,1987 which was with effect from 1.4.1989 and the same position was reintroduced from the assessment year 2002-2003 onwards by Finance Act,2001. The unabsorbed depreciation can be carried forward to subsequent assessment year which will take the colour of current depreciation of that subsequent year and can be set off against any income arising in that particular assessment year and further possible to be carried forward to subsequent years without any time limit. But, this was not the position available in the interim period from the assessment year 1996-97 to 2001-02. The period of carry forward was restricted to eight years; so also the brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third and alternative ground raised by the ld. C.A. at the time of argument and reiterated in the written submission filed by him is that the short term capital gains sought to be set off by the assessee should be treated as business income as the short term capital gains was computed under Section 50 of the Income-tax Act,1961. 22. It is the case of the ld. C.A. that even though the computation was made under the head ''capital gains'', virtually the point arises out of the sale of assets used in the business and depreciable in the course and therefore, always in the nature of business profit. 23. The above alternative contention also cannot be accepted for the reason that the profit arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .S.Jayakumar, learned counsel for the Assessee has urged before us that the learned Tribunal has erred in rejecting the said claim of the Assessee because prior to Amendment to Section 32 by the Finance Act,2001, with effect from 01.04.2002, the carry forward of the said ' Unabsorbed Depreciation ' was allowed without limitation of eight years and the Assessment Year 2001-2002 in question being the last year, the Assessee was entitled to carry forward and set off the ' Unabsorbed Depreciation' for the present year also. 4. On the contrary, Mr.T.Ravikumar, learned Senior Standing Counsel for the Revenue, has relied upon a decision of the Hon'ble Supreme Court in the case of Peerless General Finance and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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