2013 (9) TMI 872 - HC - Income Tax

Reduction of carry-forward long term capital loss Held that - Action of the A.O. in reducing the determined and assessed long capital gain loss to the extent of Rs.11,54,535 cannot be held justified because there is no dispute that such loss has been determined and accepted by the department in the relevant assessment year and the appellant is entitled to carry forward and set off such loss against the capital gain if earned in the subsequent year - If the A.O. was of the opinion that the capital loss has been determined in excess wrongly, then he should have taken action to determine the correct loss in the relevant year where such loss has been claimed and determined and he should not have reduced such loss in the year under appeal where the appellant has claimed only set off the assessed and determined loss in the previous assessment years Decided against the Revenue. Addition on account of notional interest on advance given to J.K. Cement Held that - There was funds available with the assessee at Rs.34,93,866/- and out of this, the assessee has advanced the sum to M/s. J.K. Cement. The said loan was received back on 30.06.2007. Admittedly the A.O. has not brought any evidence to suggest that the appellant has advanced the amount of the borrowed funds Decided against the Revenue. Disallowance of expenses under Section 40 (a)(ia) Held that - As regards payment of Rs.26,94,427 toward ocean freight paid to Indian agents of non resident shipping companies is covered by circular No.723 dated 19.9.1995 and therefore provisions of section 194C cannot be made applicable - As regards payment of Railway freight of Rs.216873 to container corporation of India, it may be mentioned that the payment of railway freight is excluded from the provisions of section 194C and therefore, the disallowance made is apparently against the provisions of law - In respect of payment of Rs.202479, it consists individual payments below 20,000. Therefore provisions of section 194C is not applicable - As regards the disallowance of Rs.715346, it is seen from the details filed that T.D.S. has already made and paid as per provisions of the Act - In view of above discussions, the disallowance of Rs.3829125 made under Section 40 (a)(ia) cannot be sustained and the same is therefore deleted Decided against the Revenue.

Summary

Issues:
1. Appeal under Section 260A of the Income Tax Act, 1961 against the Tribunal's order.
2. Reduction of carry-forward long term capital loss.
3. Addition on account of notional interest on advance given to J.K. Cement.
4. Disallowance of expenses under Section 40(a)(ia).

Issue 1:
The appeal under Section 260A of the Income Tax Act, 1961 was filed by the Revenue against the order of the Income Tax Appellate Tribunal, Jodhpur Bench, which dismissed the Department's appeal against the Commissioner of Income Tax (Appeals) order dated 22.02.2010. The assessment was completed under Section 143(3) of the Act for the assessment year 2007-08, with total income adjustments made by the Department.

Issue 2: Reduction of carry-forward long term capital loss:
The Commissioner of Income Tax (Appeals) allowed the assessee's plea to reduce the carry forward long term capital loss from Rs.50,91,592 to Rs.11,42,535. The Tribunal upheld this decision, stating that the Assessing Officer exceeded his authority by reducing the assessed and determined loss, which was allowed to be carried forward and set off against the capital gain.

Issue 3: Addition on account of notional interest on advance given to J.K. Cement:
The Commissioner of Income Tax (Appeals) found that there was no evidence to suggest that the appellant advanced borrowed funds to J.K. Cement, leading to the disallowance being unsustainable. The Tribunal upheld this decision, emphasizing the lack of evidence to support the disallowance.

Issue 4: Disallowance of expenses under Section 40(a)(ia):
The Commissioner of Income Tax (Appeals) accepted the submissions regarding various payments, including ocean freight, railway freight, and individual payments below Rs.20,000. The Tribunal upheld these findings, stating that the disallowance under Section 40(a)(ia) could not be sustained as T.D.S. had already been made and paid as per the Act's provisions.

The Court rejected the Department's submission that the Assessing Officer could have dealt with the long term capital loss allowed to be carried forward in earlier years while framing the assessment order for the year under appeal. The Court upheld the detailed findings of the Commissioner of Income Tax (Appeals) and the Tribunal, concluding that no substantial question of law arose for consideration, and thus dismissed the appeal.