2009 (2) TMI 483 - HC - Income Tax

Real Estate Business - in view of the fact that land and flat in issue had been purchased in the assessment year 1998-99 and the fact that since then it continued to be shown by the assessee as stock-in-trade, then, merely by virtue of the fact that in the interregnum (i.e., the assessment year 1998-99 and the assess-ment year under consideration) there had been no profit or gain shown by the assessee it could not be assumed that the assessee had given up its business of real estate. Business Loss - though a sum of Rs. 4 lakhs could not be allowed as a bad debt under the provisions of section 36(1)(vii) of the Act since the said sum had not been taken into account in computing the income of the earlier years and hence the conditions prescribed under section 36(2) of the Act were not fulfilled ; the said loss, however, could be treated as business loss since it was occasioned in the course of business carried on by the assessee Disallowance of bank interest - Tribunal having returned findings of fact, that the loan given to bodies corporate had not been diverted for non-business purposes, as also that, the loan had continued from earlier years ; the interest on bank loan ought to be allowed to the assessee as a deduction as there was no perceptible change in circumstances - No substantial question of law - appeal dismissed

Summary

Issues involved:
- Assessment of income under "Income from other sources" instead of real estate business
- Disallowance of bad debt claim
- Addition of unclaimed liability under section 41(1) of the Act
- Disallowance of deduction for interest paid to the bank

Assessment of income under "Income from other sources" instead of real estate business:
The case involved an appeal under section 260A of the Income-tax Act, 1961, against the Tribunal's judgment for the assessment year 2002-03. The Assessing Officer concluded that the assessee was not conducting real estate business as claimed, leading to the income being taxed under "Income from other sources." However, the CIT(A) reversed this finding, and the Tribunal agreed, emphasizing that the intention of the assessee mattered, not the opinion of the Assessing Officer. The Tribunal noted that the assessee's income was assessed under "Profits of business," and various business expenses were debited, indicating a real estate business. The High Court found no infirmity in this conclusion.

Disallowance of bad debt claim:
The Assessing Officer disallowed a bad debt claim of Rs. 4 lakhs, stating it was a capital loss due to a breach of contract. The Tribunal, however, treated it as a business loss since it occurred in the course of business. The High Court agreed with the Tribunal, noting that even though the conditions under section 36(2) were not fulfilled, the loss could be treated as a business loss.

Addition of unclaimed liability under section 41(1) of the Act:
The Assessing Officer added a sum under "Other liabilities" as unclaimed liability, citing section 41(1) of the Act. The Tribunal disagreed, stating that since the sum was not claimed as an expenditure earlier, section 41(1) did not apply. The Tribunal also found Explanation 2 to section 41(1) inapplicable, as the assessee was not a successor in business. The High Court concurred with the Tribunal's decision on this issue.

Disallowance of deduction for interest paid to the bank:
The Assessing Officer disallowed a deduction for interest paid to the bank, alleging failure to prove the loan was used for business purposes. The Tribunal found no diversion of funds for non-business purposes and allowed the deduction since the loan continued from earlier years. The High Court upheld the Tribunal's decision, stating that in the absence of any change in circumstances, the interest deduction should be allowed.

In conclusion, the High Court dismissed the appeal, finding no substantial question of law for consideration and upholding the Tribunal's decisions on all issues.