COMMISSIONER INCOME TAX Vs. KISAN ENGINEERING WORKS LTD.

JUDGEMENT

(1.) The above appeal has been filed under section 260-A of the Income-tax Act 1961 against the order of the Tribunal dated 16.9.2004 passed by the Income Tax Appellate Tribunal, Delhi Bench SMC-II, New Delhi in I.T.A. No. 175/Del/2003 for the assessment year 1992-1993. The appeal arises out of revisional proceedings initiated by Commissioner of Income-tax by invoking Section 263 of the Income-tax Act. The Assessing Officer completed the original assessment proceedings under section 143(3) on 26.2.1993 wherein business loss of Rs. 1,86,333/- was computed and the long term capital gain computed at Rs. 4,71,024/- was given set off of against the current years business loss. The proceedings under section 148 for reassessment was initiated thereafter in view of the fact that income from long term capital gain which worked out to Rs. 3,04,711/- after giving set off to the current year's business loss was given set off against 66.67% of brought forward unabsorbed depreciation and investment allowance. In response to notice for re-assessment, the assessee furnished its reply and participated in the proceedings. Reassessment order was completed by the Assessing Officer by computing the income of the assessee in the following manner:

(2.) The said order was revised by the Commissioner of Income-tax by invoking Section 263 of the Income-tax Act.

(3.) The Commissioner of Income-tax found that the set off of unabsorbed depreciation and investment allowance is to be restricted to 2/3rd of such allowance and it is not permissible to be set off against any head of income other than the income from business and profession. The Commissioner of Income-tax revised the income by computing it in the following manner: