2018 (5) TMI 428 - AT - Income Tax

Adjusting the unabsorbed business loss against the capital income - Held that - It is undisputed fact that the assessee has the earned the long term capital income by way of transfer of the business assets such as factory building, Plant & Machinery, electric installation under the head slum sale. Thus the nature of LTCG is in the nature of business profit & gains which is liable to be taxed under the head capital gain by virtue of the provisions of law. But the nature of LTCG is business only as discussed above in the case of Digital Electronics Ltd.(2010 (10) TMI 722 - ITAT, Mumbai). We direct the AO to set off the business loss against the business income and the remaining loss should be set off against the LTCG. Assessee s appeal is partly allowed.

Summary

Issues Involved:
- Assessment order under section 143(3) challenged as arbitrary and illegal
- Adjustment of unabsorbed business loss against capital gain disputed
- Justification of interest charged under sections 234A and 234C questioned

Issue 1: Assessment Order Challenge
The appeal contested the assessment order under section 143(3) as arbitrary and illegal. The appellant argued that the order passed by the Commissioner of Income Tax (Appeals) was not justified both in law and fact. The grounds raised included challenging the sustainability of the assessment order and its legality. The appellant sought to alter or amend the grounds during the hearing. The issue was brought before the Appellate Tribunal ITAT Kolkata for review.

Issue 2: Adjustment of Unabsorbed Business Loss
The primary issue revolved around the adjustment of unabsorbed business loss against capital gain. The appellant contended that the Assessing Officer erred in adjusting the unabsorbed business loss of ?16,64,524 against the capital income. The appellant argued that as per Section 72 of the Income Tax Act, only the brought forward business loss could be set off against business income. However, the AO set off the loss against LTCG income, contrary to the Act. The CIT(A) upheld the AO's decision, citing a precedent from the ITAT Mumbai Tribunal. The appellant challenged this decision, emphasizing the statutory provisions and relevant case law to support their claim.

Issue 3: Interest Charged under Sections 234A and 234C
The final issue pertained to the levy of interest under sections 234A and 234C of the Income Tax Act. The appellant raised concerns regarding the interest charged by the AO and sought relief in this regard. The Tribunal directed the AO to provide consequential relief to the assessee concerning the interest levied under the specified sections.

Conclusion:
The Tribunal partially allowed the appellant's appeal concerning the adjustment of business loss against income. It directed the AO to set off the business loss against business income and the remaining loss against LTCG income. Additionally, relief was granted to the assessee regarding the interest charged under sections 234A and 234C. The judgment highlighted the importance of adhering to statutory provisions and relevant case law in determining the appropriate set-off of losses against different income streams.