2009 (6) TMI 901 - AT - Income Tax

Issues Involved:
1. Non-allowance of set off of indexed long-term capital loss against long-term capital gains without indexation.
2. Computation of long-term capital gains with and without indexation.
3. Interpretation of Section 70(3) of the Income-tax Act, 1961.
4. Application of Section 112 of the Income-tax Act, 1961.

Issue-wise Detailed Analysis:

1. Non-allowance of Set Off of Indexed Long-term Capital Loss Against Long-term Capital Gains Without Indexation:
The primary issue in this appeal is the non-allowance of set off of indexed long-term capital loss (LTCL) against long-term capital gains (LTCG) without indexation. The assessee claimed a set off of indexed LTCL of Rs. 33,09,082 against LTCG without indexation of Rs. 76,82,965. The Assessing Officer (AO) rejected this claim, citing that Section 70(3) of the Income-tax Act does not allow such set off due to differing computation methods. The AO further argued that different tax slabs for gains with and without indexation (20% with indexation and 10% without indexation) prevent such set off. The Commissioner of Income-tax (Appeals) partially allowed the set off, directing the AO to recalculate gains and losses without indexation. However, the assessee remained aggrieved by this partial relief.

2. Computation of Long-term Capital Gains With and Without Indexation:
During the assessment, the assessee provided a revised computation of long-term capital gains and losses without indexation. The original working showed an indexed LTCL of Rs. 33,09,082 and LTCG without indexation of Rs. 76,82,965, resulting in net gains of Rs. 43,73,883. The revised working showed an indexed LTCL of Rs. 26,07,112 and the same LTCG without indexation, resulting in net gains of Rs. 50,75,853. The AO rejected the revised working, insisting that the assessee must compute LTCG with indexation unless the tax payable with indexation exceeds the tax payable without indexation. Consequently, the AO taxed the LTCG without indexation and allowed the indexed LTCL to be carried forward.

3. Interpretation of Section 70(3) of the Income-tax Act, 1961:
Section 70(3) states that a loss from the transfer of a long-term capital asset shall be set off against income from the transfer of another long-term capital asset under a similar computation. The AO interpreted "similar computation" to mean that losses with indexation cannot be set off against gains without indexation. However, the Tribunal clarified that Section 70(3) allows set off of losses from one source against gains from another source under the same head of income, i.e., capital gains. The Tribunal held that the set off of indexed LTCL against LTCG without indexation is permissible under Section 70(3).

4. Application of Section 112 of the Income-tax Act, 1961:
Section 112 provides for the tax on long-term capital gains, offering two methods of computation: with indexation (taxed at 20%) and without indexation (taxed at 10%). The proviso to Section 112 allows the assessee to choose the method that results in lower tax liability. The Tribunal emphasized that the computation of LTCG with or without indexation is for determining the tax payable. The option to choose the method of computation does not affect the set off of losses under Section 70(3). The Tribunal directed the AO to set off the indexed LTCL against the LTCG without indexation and compute the tax as per the proviso to Section 112.

Conclusion:
The Tribunal allowed the appeal, directing the AO to set off the indexed long-term capital loss against the long-term capital gains without indexation and compute the tax liability according to the provisions of Section 112. The order was pronounced on June 3, 2009.

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