2022 (8) TMI 670 - AT - Income Tax

Set off of Brought Forward Unabsorbed Business Losses (Other than Speculation Loss) against the Speculation Business Income of the Current Year - HELD THAT - Assessee has justified set-off of brought forward business losses against speculation business income of the year contending that it is in accordance with law as prescribed by section 72(1) of the Act. The contention of assessee that unabsorbed business losses can be set off against any income from business, be it speculative or otherwise, is correct. Section 72(1)(i) clearly states so. There is nothing in the section denying setoff of unabsorbed brought forward business losses from speculative business income. As per section 72(1)(i) the assessee is clearly entitled to claim the set off of the unabsorbed business losses from speculation business income of the impugned year. The claim of the assessee therefore, we hold, in accordance with law. We fail to understand how the decision of Hon'ble Delhi High Court in the case of DLF Commercials 2013 (7) TMI 334 - DELHI HIGH COURT relied upon by the AO to deny set off of brought forward losses from speculative income of the year, helps the case of the Revenue. The findings in the said case, reproduced in the order of the AO are in relation to section 73 of the Act, which deal with carry forward and set off of speculative losses, which is not the fact in the present case where set off of business losses is in dispute and there is speculative income and not speculative losses at all. In view of the above the claim of set off of brought forward business losses against current years speculative business income is held to be in accordance with law. And the AO is directed to allow the same to the assessee. Addition u/s 68 - unexplained loans taken - HELD THAT - Out of total unsecured loan taken by the assessee to the tune of Rs. 35,98,244/- all was found genuine except this very small amount of Rs. 18,000/-, and noting the fact that the assessee had given all cooperation to the Revenue in this regard pointing out that notice under section 133(6) of the Act had been sent in incorrect name of the depositor, had pointed out the correct name of the depositor and also sought to serve of the notice by the assessee himself, but none of the request of the assessee was acceded to by the Revenue we see no reason to uphold the addition. The assessee having admittedly proved genuineness of 99.5% of the unsecured loans taken and with regard to this small deposit of Rs. 18,000/-, had given an explanation for non-service of notice under section 133(6), and had offered all cooperation in getting its confirmation, the said loan can also be safely said to be genuine and cannot be doubted for the mere reason that no confirmation was forthcoming of the same. Thus we see no reason to hold the impugned unsecured loan of Rs. 18,000/- as unexplained - Decided in favour of assessee.

Summary

Issues Involved:
1. Claim of set off of unabsorbed business losses against speculative business income.
2. Addition of cash credit under section 68 of the Income Tax Act.

Analysis:

Issue 1: Claim of set off of unabsorbed business losses against speculative business income
The dispute revolves around the assessee's claim to set off unabsorbed business losses from earlier years against speculative business profits of the current year. The AO denied the set off, citing precedents from the Hon'ble Delhi High Court and Hon'ble Allahabad High Court. However, the ITAT held that as per section 72(1) of the Income Tax Act, unabsorbed business losses can be set off against any business income, including speculative income. The ITAT emphasized that the AO's reliance on the Delhi High Court case was misplaced as it pertained to speculative losses, not speculative income as in the present case. Additionally, the incomplete citation of the Allahabad High Court case rendered it irrelevant. Consequently, the ITAT directed the AO to allow the set off of brought forward business losses against the current year's speculative business income.

Issue 2: Addition of cash credit under section 68 of the Income Tax Act
The second ground of appeal pertains to the addition of Rs. 18,000 under section 68 of the Income Tax Act due to a cash credit from a certain individual. The AO made the addition as confirmation regarding the cash credit was not obtained. However, the assessee explained that the notice was sent to the wrong name, leading to non-service of the letter. Despite the assessee's efforts to rectify the error and cooperate with the Revenue, the addition was upheld by the CIT(A). The ITAT, after considering the genuineness of the majority of unsecured loans and the circumstances surrounding the disputed amount, concluded that the Rs. 18,000 cash credit should not be treated as unexplained. Therefore, the ITAT allowed the appeal, directing the deletion of the addition under section 68.

In conclusion, the ITAT ruled in favor of the assessee on both issues, allowing the set off of unabsorbed business losses against speculative business income and directing the deletion of the addition under section 68.