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TMI Blog2019 (7) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (3) TMI 328 - MADRAS HIGH COURT on the ground that no question of law much less a substantial question of law is involved. HELD THAT:- The Revenue cannot prosecute the present case as the order passed in the miscellaneous petition stood merged with the earlier order and the composite order being questioned before the Court and the challenge at the instance of the revenue having been rejected in 2008 (3) TMI 328 - MADRAS HIGH COURT , the present appeal should also fail. Accordingly the appeal is dismissed on the ground that there is no substantial question of law involved in the case as also for the reasons set out. - TCA.No.757 of 2008 - - - Dated:- 19-6-2019 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at unabsorbed depreciation cannot be said set off as against the current Long Term Capital Gains by interpreting Section 32(2) of the Act. He further held that identical interpretation is also applicable to Section 72 of the Act and the respondent assessee can set off brought forward business loss against current year business income only and in other words, it held that the assessee cannot claim set off against the capital gains. The assessee filed an appeal before the 'Commissioner of Income Tax (Appeals)-V (CIT(A)) deciding both the issues on which the Assessing Officer denied set off. 6.The CIT(A) by an order dated 04.08.2003 considered both the issues and held in favour of the assessee. It would be relevant to take n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in ITA.No.1929/Mds/2003 and there was an another appeal filed by the assessee for the assessment year 1996-1997 in ITA.No.1849/Mds/2003. All the three appeals i.e., one filed by the Revenue and two filed by the assessee were disposed of by the Tribunal by common order dated 02.02.2007. The appeal filed by the revenue in ITA.No.1964/Mds/2003 was dismissed. In other words, the finding rendered by the CIT(A) in ITA.No.58/2003-2004 stood confirmed in which both the issues were decided in favour of the assessee. For the reasons which are not clear, the assessee moved a Miscellaneous Petition before the Tribunal in MP.No.0027/Mds/07 contending that the Tribunal had not considered set off of carried forward business losses against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The answer to the said question would be a definite No . The appeal filed against the substantive order before the Tribunal is dated 02.04.2007 covering both issues and the Tribunal held against the Revenue which order was confirmed by the Division Bench in [2009] 318 ITR 0187 (supra) holding that there is no substantial question of law arising for consideration. 10. In the light of the above, the Revenue cannot prosecute the present case as the order passed in the miscellaneous petition stood merged with the earlier order and the composite order being questioned before the Court and the challenge at the instance of the revenue having been rejected in [2009] 318 ITR 0187 (supra), the present appeal should also fail. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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