1998 (10) TMI 540 - HC - Income Tax

Summary

Issues:
1. Whether the Tribunal was correct in holding that there is only one line of business, namely, construction business with a branch at Kuwait and common management and control?
2. Whether the Tribunal was correct in setting aside the order made under section 263 of the Income-tax Act?

Analysis:

Issue 1:
The assessee, a limited company, engaged in the construction business in India and Kuwait, filed a return for the assessment year 1984-85, declaring income and claiming brought forward losses. The Commissioner of Income-tax examined the records under section 263, questioning the expenses related to the Kuwait branch due to alleged lack of business activity there. The Commissioner directed disallowance of the claimed expenditure, citing no business activity or liability in Kuwait and lack of details on the expenses incurred. The Tribunal, however, found that the business in India and Kuwait constituted a single composite business, emphasizing unity of control as the decisive test, not the nature of the businesses. The Tribunal noted that the construction business was ongoing in India, even if not active in Kuwait, and the management and control were common, leading to the conclusion that there was only one line of business, i.e., construction business with a Kuwait branch.

Issue 2:
The Department challenged the Tribunal's decision by moving an application under section 256(1) of the Income-tax Act, which was rejected by the Tribunal on the grounds that the decision was based on factual findings with no question of law arising. The Revenue argued that for expenditure deduction under section 37, the business must be continuing, and expenses cannot be set off against income from another business. However, the Tribunal upheld its decision, stating that the business activities in Kuwait and India were the same, both being construction businesses with common management and control. The Tribunal found no legal question arising from its order and rejected the Department's suggested questions, ultimately dismissing the petition.

In conclusion, the High Court upheld the Tribunal's decision, affirming that the construction business in India and Kuwait constituted a single business entity with common management and control. The judgment emphasized the importance of unity of control in determining whether separate business activities are part of the same business for tax purposes, highlighting that the nature of the businesses is not as crucial as the commonality of management.