2011 (3) TMI 578 - AT - Income Tax

Set off and carry forward of losses - Revised return - In pursuance of amalgamation form 6 companies, assessee availed the benefit of carried forward loss and unabsorbed depreciation of three of the 6 amalgamating companies - In the revised computation of income filed by the Assessee along with letter dated 11-1- 2006 the claim for set off was restricted to Rs.13,60,59,096 comprising of Rs.4,56,28.025 being unabsorbed brought forward business loss and Rs.9,04,31,071 being unabsorbed depreciation - Therefore it is not correct to state that the Assessee did not make any claim before the AO - The fact that there was unabsorbed depreciation and loss as per annexure 11 to the Tax Audit report filed along with the return of income at Rs. 10,48,35,810 and Rs.4,56,28,025 respectively is not in dispute and the only aspect that ought to be considered is verification of details, which the AO has already done - Appeal is dismissed

Summary

Issues Involved:
1. Rectification of apparent errors in the Tribunal's order dated 15/5/2008.
2. Set off of unabsorbed depreciation and business loss under Section 72A(2) of the Income Tax Act.
3. Addition of set-off losses as income under Section 72A(3) due to non-compliance with conditions.

Detailed Analysis:

1. Rectification of Apparent Errors (M.A. No. 668/Mum/08 by the Revenue):

The Revenue filed a Miscellaneous Application (M.A.) seeking rectification of certain apparent errors in the Tribunal's order dated 15/5/2008. The primary contention was regarding the figures of unabsorbed depreciation and business loss claimed by the Assessee, which the Revenue argued were not consistent with the original return, revised return, and revised computation filed during the assessment proceedings. The Revenue claimed that the Tribunal allowed the benefit without proper verification of facts and without giving the Assessing Officer (AO) an opportunity to examine the details.

2. Set Off of Unabsorbed Depreciation and Business Loss (Section 72A(2)):

The Assessee, a company engaged in manufacturing and selling beer, underwent two amalgamations involving multiple companies. The Assessee claimed set off of unabsorbed depreciation and business loss from the amalgamating companies. The AO initially did not allow the claim due to lack of evidence and compliance with the conditions under Section 72A(2), which requires holding at least three-fourths of the book value of fixed assets of the amalgamating company for a minimum period of five years.

The Tribunal noted that the Assessee had provided the necessary details of unabsorbed depreciation and business loss in the Tax Audit Report and revised computation of income. The AO had later verified these details during proceedings to give effect to the Tribunal's order and allowed a major part of the claim. Thus, the Tribunal found no mistake in its earlier order and dismissed the Revenue's M.A.

3. Addition of Set-off Losses as Income (Section 72A(3)):

The AO invoked Section 72A(3) to treat the set-off losses allowed in previous years as income for the year in which the conditions were not complied with, due to the second amalgamation. The Assessee contested this addition, arguing that the conditions under Section 72A(2) were not violated.

The Tribunal observed that the AO had already verified the details and allowed the claim of unabsorbed depreciation and business loss to the extent supported by evidence. The Tribunal upheld that the Assessee's claim was in compliance with the provisions of Section 72A(1) and (2), and no further verification was necessary. Consequently, the Tribunal dismissed the Revenue's M.A.

Separate Judgments:

The Tribunal's decision was unanimous, and no separate judgments were delivered by the judges.

Conclusion:
The Tribunal dismissed both the M.A. filed by the Revenue and the Assessee. The Revenue's M.A. was dismissed on the grounds that the Assessee had provided sufficient evidence for the claim, which was verified by the AO. The Assessee's M.A. was dismissed as not pressed since the related issue was admitted by the High Court. The Tribunal found no mistake in its original order and maintained that the Assessee's claim complied with the provisions of Section 72A.