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TMI Blog2021 (3) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 115BBE. This is further confirmed by the amendment made under the Finance Act, 2016, which is applicable from AY 2017-18. Pre-amended provision of Section 115BBE of the Act did not convey the intention that losses shall not be allowed to be set-off against income referred to in Section 115BBE of the Act and hence, the amendment was made vide the Finance Act, 2016. Thus keeping the legislative intent behind amendment in Section 115BBE(2) vide the Finance Act, 2016 to remove any ambiguity of interpretation, the Board is of the view that since the term 'or set off of any loss' was specifically inserted only vide the Finance Act 2016, w.e.f. 01.04.2017, an assessee is entitled to claim set-off of loss against income determined u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depreciation of earlier year and ₹ 6,260/- unabsorbed business loss of earlier year against the surrendered income of ₹ 2.47 Cr. 3. The assessee company is engaged in the business of real estate development as builder. A search and seizure operation u/s 132 of the Income Tax Act, 1961 was conducted on 4/7/2014 on the premises of the assessee comprising ACE group of cases. The original return of income was filed on 27/09/2015 at a loss of ₹ 20,52,510/- as unobserved depreciation to be carried forward. During search proceedings an amount of ₹ 2,47,00,000/- was surrendered and thus return was revised and filed on 8/7/2016 showing total income of ₹ 2,25,41,400/- after setting off unobserved depreciation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Vs ACIT ITA No. 1084/Mum/2019 (A.Y 2013-14) dated 11/1/2020. Therefore, it is clearly established that set off of brought forward losses/depreciation against the income assessed u/s 69 is allowable in AY 2015- 16. Had it not been so, there was no need for any amendment in sec 115BBE. The very fact that now, w.e.f. AY 2017-18 the provision has been amended proves conclusively that earlier there was no bar for adjusting brought forward losses/ depreciation against the income assessed u/s 69. Accordingly, even if for the sake argument it is said that the surrender of ₹ 2,47,00,000/- is under sec 69, the assessee is still entitled to get setoff of loss/depreciation against the additions of ₹ 2,47,00,000/-. The Ld. AR submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use they will be subject matter of revision u/s 263 or reassessment u/s 147. If CIT(A) tries to examine those issues which have not been considered by the AO, sec. 147 as well as sec. 263 will become redundant and the conditions for their operation will be nullified. This view is fully supported by various judgments of Hon ble Apex Court, High Court and Hon ble jurisdictional ITAT as under: (a) Sh. Vikrant Puri vs ACIT; 142 5789/Del/2013; dt. 04/03/2016 (b) Holcim (India) Pvt. Ltd. v/s DCIT, 2013-TIOI-903-ITAT-DEL (c) CIT vs. Rai Bahadur Hardutroy Motilal Chamaria, (1967) 66 ITR 443 (SC) (d) CIT vs. Sardari Lal Co. 251 ITR 864 (Del)(FB) (e) CIT(A) vs. Union Tyres; 240 ITR 556 (Del) 6. The Ld. DR submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but, this Section does not indicate that set off of brought forward business losses shall not be allowed from income assessed u/s 69 for the purpose of calculating tax u/s 115BBE. This is further confirmed by the amendment made under the Finance Act, 2016, which is applicable from AY 2017-18. Relevant extract of the amended provision is reproduced as under: 115BBE. (2) Notwithstanding anything contained in this Act, no deduction in respect of any expenditure or allowance or setoff of any loss shall be allowed to the assessee under any provision of this Act in computing his income referred to in clause (a) of sub-section (1]. As per the Finance Act, 2016, amendment for disallowance of set off of brought forward losses against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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