9911796707
TMI Blog2024 (6) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... for set off of carry forward unabsorbed depreciation loss. Whether or not section 79 of the Act applies to the carry forward of unabsorbed depreciation loss is only a question of law, and would have been decided by the learned CIT(A) even in the absence of the assessee, because the decision of the higher forum equally binds the learned CIT(A) as it binds all the authorities before that forum. The Hon ble Apex Court in Subhulaxmi Mills Ltd.[ 1995 (9) TMI 2 - SUPREME COURT ] is clear on this aspect and in the case of Shri Subhlaxmi Mills Ltd. [ 1976 (1) TMI 2 - GUJARAT HIGH COURT] expressly approved the view taken by the Hon ble Gujarat High Court that when section 79 of the Act speaks of loss, it does not include unabsorbed depreciation or u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee ) for the assessment year 2013-14, assessee preferred this appeal with a delay of 148 days. 2. Director of the company filed an affidavit, explaining the reasons for the delay of 148 days in filing the appeal, and prayed that delay is unintentional and inadvertent due to the circumstances beyond their control. It is further stated that the company is at remote place in Karimnagar District. From 01/04/2020 on account of Covid-19, the business came to a standstill and the employees left and there were no staff at the registered office at Karimnagar. As there was no staff at the office, there was nobody to receive notice of the orders passed by the authorities. It was only when the demand was sought to be enforced and then, they contacted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-13 to be set off against the future losses, but the learned PCIT, in exercise of powers under section 263 of the Income Tax Act, 1961 (for short the Act ) revised the same holding that the shareholding pattern of the assessee company changed substantially for the year under consideration and the shareholding to the extent of 51% was not the one and the same in the assessment year 2012-13 and 2013-14, and therefore, in terms of section 79 of the Act, the carried forward losses cannot be allowed to be set off against the profits of the company in subsequent years. 5. Learned Assessing Officer, pursuant to the orders of the PCIT under section 263 of the Act, disallowed the brought forward losses of the assessment year 2012-13 and added the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to put forth their case on merits. learned DR, therefore, submits that without availing the opportunity granted by the learned CIT(A) and without allowing this forum to have the benefit of the view of the learned CIT(A) on this aspect for effective adjudication of the issue, it is not open for the assessee now to contend that the learned CIT(A) should not have proceeded ex parte or that he should have allowed the unabsorbed depreciation losses on the ground that section 79 of the Act has no application to the unabsorbed depreciation or unabsorbed development rebate. 10. We have gone through the record in the light of the submissions made on either side. It could be seen from the impugned order that the assessee had taken the plea that se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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