1977 (8) TMI 31 - HC - Income Tax

Summary

Issues Involved:
1. Interpretation of Section 79 of the Income-tax Act, 1961.
2. Whether both conditions in clauses (a) and (b) of Section 79 must apply for disentitling the set-off of a prior year's loss.
3. The impact of changes in shareholding on the eligibility to set-off carried forward losses.

Detailed Analysis:

1. Interpretation of Section 79 of the Income-tax Act, 1961
Section 79 deals with the carry forward and set-off of losses in companies where there has been a change in shareholding. The provision states that no loss incurred in any year prior to the previous year shall be carried forward and set off against the income of the previous year unless:
- (a) On the last day of the previous year, the shares of the company carrying not less than 51% of the voting power were beneficially held by persons who held shares carrying not less than 51% of the voting power on the last day of the year or years in which the loss was incurred.
- (b) The Income-tax Officer is satisfied that the change in shareholding was not effected with a view to avoiding or reducing any liability to tax.

2. Whether both conditions in clauses (a) and (b) of Section 79 must apply for disentitling the set-off of a prior year's loss
The primary contention was whether clauses (a) and (b) of Section 79 are cumulative or alternative. The Tribunal held that these conditions are alternative, meaning that if either condition is met, the company is disentitled from claiming the set-off of the prior year's loss. The Appellate Assistant Commissioner, however, viewed the conditions as cumulative, requiring both to be satisfied for disentitlement.

3. The impact of changes in shareholding on the eligibility to set-off carried forward losses
The assessee argued that the reshuffling of shares among three groups was for convenience and did not aim to avoid or reduce tax liability. The Appellate Assistant Commissioner agreed, allowing the set-off. The Tribunal, however, reversed this decision, stating that the conditions in clauses (a) and (b) are independent. The Tribunal did not conclusively determine whether the change in shareholding was made to avoid tax, merely noting that the Appellate Assistant Commissioner had not provided adequate opportunity for the Income-tax Officer to present necessary material.

Court's Conclusion:
The court held that clauses (a) and (b) of Section 79 are not independent but interconnected. Clause (b) applies when the benefit of clause (a) is not available. If there is a change in more than 51% of the voting power, the Income-tax Officer must determine whether this change was made to avoid or reduce tax liability. If not, the assessee is entitled to the set-off under clause (b).

The court found that the Tribunal erred in its interpretation, stating that "the change in shareholding" in clause (b) refers to a change of the type mentioned in clause (a). The court emphasized that clause (b) would apply even if there is a change in more than 51% of the voting power, provided it was not intended to avoid or reduce tax liability.

The court directed the Tribunal to determine whether the change in shareholding was made to avoid or reduce tax liability before deciding on the set-off claim. The revenue was ordered to pay the costs of the assessee.