2008 (3) TMI 328 - HC - Income Tax

Whether, Tribunal was right in allowing the set off of prior years business loss and unabsorbed depreciation against short-term capital gains ? - the unabsorbed depreciation allowance of the assessment year 1996-97 shall be added to the allowance of 1997-98 and will be deemed to be the allowance of that year. The limitation of eight years shall start from the assessment of year 1997-98 Assessee entitled to set off of unabsorbed depreciation and loss in A.Y. 2000-01 - Tribunal has rightly come to the conclusion that the assessee is entitled to the unabsorbed depreciation brought forward as on April 1, 1997, and could be set off against the business profits.

Summary

Issues:
Interpretation of provisions regarding set off of prior years business loss and unabsorbed depreciation against short-term capital gains.

Analysis:
The case involved an appeal filed against the order of the Income-tax Appellate Tribunal, Madras "C" Bench, concerning the assessment year 2000-01. The assessee had set off prior years business loss and unabsorbed depreciation against short-term capital gains for that year. The Commissioner of Income-tax (Appeals) allowed the claim, directing the Assessing Officer to set off the claim. Subsequently, the Revenue filed a second appeal before the Income-tax Appellate Tribunal, which allowed the appeal in favor of the assessee based on a decision from the Delhi Special Bench. The Revenue challenged this decision by formulating a question of law regarding the Tribunal's allowance of set off in the circumstances.

The amended provisions of section 32(2) of the Act, effective from April 1, 1997, allowed for the absorption of depreciation allowance of one business against profits of another business of the same assessment year if the income from the former was insufficient. If the depreciation allowance of a business could not be absorbed within the same year, it could be set off against income under any other head assessable for that year. The unabsorbed depreciation could be carried forward for up to eight assessment years if not wholly set off. The Finance Minister's clarification in Parliament and Circular of the Central Board of Direct Taxes further supported this interpretation.

The Court held that the Tribunal's decision was correct, as the assessee was entitled to set off the unabsorbed depreciation brought forward as of April 1, 1997, against business profits. Consequently, the appeal was dismissed as it did not involve any question of law, let alone a substantial one.