2010 (1) TMI 758 - AT - Income Tax

Long-term capital loss - loss incurred on part surrender of leasehold land to MIDC - CIT(A), rejected the claim of long-term capital loss on the ground that the assessee had never owned the capital asset - According to section 2(14) of the Income-tax Act, the word capital asset means, property of any kind held by an assessee - Held that - the agreement was executed, consideration was paid and possession of the plot was taken by the assessee. The assessee was having rights in the said plot which is evident from the fact that after sub-division of plot, one of the portion of plot was given to M/s. Lucas TVS Ltd. vide agreement dated 11-3-2004 wherein the assessee was one of the party along with MIDC and consent of the assessee was taken, surrender of rights of the assessee referred to above would amount to extinguishment of his rights in the land/capital asset and, therefore, it attracts capital gains/loss, Order set aside and appeal allowed.

Summary

Issues:
1. Rejection of claim of long-term capital loss
2. Disallowance under section 14A of the Income-tax Act, 1961
3. Disallowance under section 36(1)(iii) for entire interest on fund borrowed

Issue 1: Rejection of Claim of Long-term Capital Loss

The appellant filed an appeal against the order of CIT(A) rejecting the claim of long-term capital loss amounting to Rs. 3,69,08,837. The Assessing Officer observed that the appellant never owned the capital asset in question, a leasehold land, as the transaction with Maharashtra Industrial Development Corporation (MIDC) was conditional and the appellant failed to fulfill the necessary conditions for ownership. The CIT(A) upheld this decision, stating that the appellant did not gain ownership of the land as per the terms of the agreement with MIDC. The appellant argued that the leasehold right is a capital asset and the surrender of this valuable right should be considered a transfer of a capital asset, attracting capital gains or loss. The appellant cited relevant case laws to support their argument. The Tribunal noted that the appellant had rights in the plot, evidenced by the possession and agreements entered into, leading to the conclusion that surrendering these rights amounted to extinguishment of capital asset rights, thus allowing the claim of long-term capital loss.

Issue 2: Disallowance under Section 14A of the Income-tax Act, 1961

The appellant's claim under section 14A for disallowance of a sum of Rs. 1,17,818 representing 10% of exempt income was dismissed as the learned AR did not press this ground during the hearing. Consequently, this issue was not further discussed or contested.

Issue 3: Disallowance under Section 36(1)(iii) for Entire Interest on Fund Borrowed

The appellant contested the disallowance of Rs. 20,60,000 under section 36(1)(iii) for the entire interest on funds borrowed during the year. However, this issue was not pressed by the appellant during the hearing, leading to its dismissal without further deliberation or argument.

In conclusion, the Appellate Tribunal ITAT, Mumbai partly allowed the appeal of the assessee concerning the rejection of the claim of long-term capital loss, emphasizing the rights held by the appellant in the disputed land and the consequent extinguishment of those rights. The other issues of disallowance under section 14A and section 36(1)(iii) were either dismissed or not pressed during the hearing, resulting in no further consideration or alteration of the original orders on these matters.