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2015 (9) TMI 1111 - AT - Income TaxSet off of loss - whether CIT(A) erred in law in holding that the appellant is entitled for set off of unabsorbed business loss and depreciation relating to Neora Hydro Limited amalgamated with the assessee? - Held that - No reason to interfere with the order of ld. CIT(Appeals) and we uphold the same particularly because in the present case assessee had furnished all the particulars regarding steps taken by amalgamating company towards business, as noted in the chart filed by ld. Senior counsel, and, in any view of the matter, business commenced from 8/10/99 when permission was granted by WBSEB. - Decided against revenue. Allowability of interest - Held that - As decided by assessee s own case assessee has total capital and reserves available at ₹ 140 cr. along with total income assessed by the AO for AY 2006-07 and 2007-08 at ₹ 26.86 cr. and ₹ 43.47 cr. respectively, the assessee has availability of funds interest free more than the interest free advances. Accordingly, we confirm the order of CIT(A) deleting the disallowance. Similar are the facts in AY 2007-08 and hence, taking a consistent view, we delete the disallowance in this year also - Decided against revenue.
Issues Involved:
1. Entitlement for set off of unabsorbed business loss and depreciation. 2. Allowability of interest on advances. Detailed Analysis: Issue 1: Entitlement for Set Off of Unabsorbed Business Loss and Depreciation The primary issue in this appeal revolves around whether the assessee is entitled to set off unabsorbed business loss and depreciation amounting to Rs. 3,70,17,484/- related to Neora Hydro Limited, which amalgamated with the assessee-company. The Assessing Officer (AO) contended that the conditions prescribed under section 72A of the Income Tax Act were not satisfied, particularly focusing on the date of commencement of power generation, which was 03.04.2006. The AO argued that since the business had not been engaged in for three years or more, the set-off was not permissible. The CIT(A) relied on the ITAT Kolkata decision in the case of DCIT vs. Gujarat NRE Coke Limited, which interpreted "engaged in business" to have a broader meaning than merely the commencement of production. The CIT(A) observed that Neora Hydro Limited had been involved in various business activities, such as obtaining approvals and placing orders for machinery, since its incorporation in 1999, thus satisfying the conditions under section 72A(2)(a). The Tribunal upheld the CIT(A)'s decision, emphasizing that "engaged in business" does not solely imply "engaged in production." The Tribunal referred to the precedent set by the case of Gujarat NRE Coke Limited, which clarified that the term "engaged in business" encompasses various preparatory activities leading up to actual production. Therefore, the Tribunal concluded that the assessee was entitled to the set-off of the unabsorbed business loss and depreciation. Issue 2: Allowability of Interest on Advances The second issue concerns the disallowance of Rs. 54,63,630/- in respect of interest on advances to Neora Hydro Limited. The AO disallowed this amount on the grounds that the interest-free advance was given from the Cash Credit Account, which incurred interest expenses for the assessee. The CIT(A) deleted the disallowance, referencing the decisions of the Hon'ble Jurisdictional High Court in CIT vs. Britannia Industries Limited and J.K. Industries vs. CIT. These cases established that if the assessee had sufficient funds of its own, the interest-free advances could be considered as made from those funds rather than borrowed funds. The CIT(A) noted that the assessee had a 50% share in Neora Hydro Limited and had a business interest in the supply of electricity, thus justifying the advances as commercially expedient. The Tribunal upheld the CIT(A)'s decision, citing its own earlier ruling in the assessee's case for previous assessment years. It reiterated that the assessee had sufficient interest-free funds to cover the advances and that the advances were made for business purposes. The Tribunal also referred to the judgment of the Hon'ble Bombay High Court in CIT vs. Reliance Utilities & Power Ltd., which supports the presumption that interest-free advances are made from interest-free funds if such funds are available. Conclusion: The Tribunal dismissed the appeal filed by the Revenue, affirming the CIT(A)'s decisions on both issues. The assessee was entitled to set off the unabsorbed business loss and depreciation related to Neora Hydro Limited, and the disallowance of interest on advances was not justified given the sufficient availability of interest-free funds and the commercial expediency of the advances.
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