Understanding Loss Set-Off or carry forward and set-off of losses in Clause 108 of the Income Tax Bill, 2025 Vs. Section 70 of the Income Tax Act, 1961

Clause 108 Set off of losses under the same head of income.

Income Tax Bill, 2025

Introduction

Clause 108 of the Income Tax Bill, 2025, addresses the set-off of losses under the same head of income. This provision forms part of Chapter VII of the Bill, which deals with the set-off or carry forward and set-off of losses. The clause is significant in the context of income tax legislation as it provides clarity and structure for taxpayers on how to manage losses incurred from different sources under the same head of income. The provision ensures that taxpayers can offset their losses in a manner that minimizes their tax liability, adhering to the principle of net taxation where only the net income is taxed.

Objective and Purpose

The legislative intent behind Clause 108 is to provide a systematic approach to handling losses within the same head of income, excluding capital gains, for any tax year. The provision aims to prevent the unfair taxation of gross income by allowing taxpayers to offset losses against gains from other sources under the same head. This mechanism ensures the equitable treatment of taxpayers by recognizing that not all income-generating activities result in profits. The clause also aims to maintain consistency with international tax practices, where similar set-off provisions are common.

Detailed Analysis

Clause 108 is divided into two primary subsections:

1. Subsection (1): This subsection allows the assessee to set off a loss from any source under any head of income, other than capital gains, against income from any other source under the same head for that tax year. This provision aligns with the principle of net income taxation, ensuring that only the net income is subject to tax. It is crucial for taxpayers engaged in multiple income-generating activities under the same head, such as business or profession, to optimize their tax liability.

2. Subsection (2): This subsection deals specifically with losses arising from the transfer of capital assets. It distinguishes between long-term and short-term capital assets, prescribing distinct set-off rules:

- Long-term capital assets: Losses from these assets can only be set off against gains from the transfer of other long-term capital assets.

- Short-term capital assets: Losses from these assets can be set off against gains from the transfer of any capital asset.

The distinction between long-term and short-term capital assets is crucial as it reflects the varying tax treatment and holding periods associated with these asset classes. This segregation ensures that taxpayers cannot exploit tax benefits by offsetting long-term capital losses against short-term capital gains, which may be subject to different tax rates.

Practical Implications

Clause 108 has significant implications for taxpayers, particularly those with diversified income portfolios. The provision requires taxpayers to maintain detailed records of their income and losses to accurately compute their net income under each head. For businesses and individuals with multiple income sources, this clause provides a mechanism to minimize tax liability by offsetting losses against gains efficiently. From a compliance perspective, taxpayers must ensure accurate reporting and documentation to substantiate their claims for loss set-off. The provision also necessitates a thorough understanding of the classification of assets as long-term or short-term, given the differing set-off rules.

Comparative Analysis 

A comparative analysis of Clause 108 of the Income Tax Bill, 2025, and Section 70 of the Income-tax Act, 1961, reveals several similarities and differences:

1. General Provisions: Both Clause 108(1) and Section 70(1) allow for the set-off of losses from one source against income from another source under the same head, excluding capital gains. This consistency reflects a stable policy approach to handling losses across different tax regimes.

2. Capital Gains Treatment: The treatment of capital gains in Clause 108(2) is more refined compared to Section 70. While Section 70 separates short-term and other capital assets, Clause 108 further distinguishes between long-term and short-term capital assets, providing specific rules for each. This distinction in the 2025 Bill introduces a more tailored approach, potentially leading to more precise tax planning opportunities.

3. Legislative Evolution: The differences in the treatment of capital assets between the two provisions may reflect an evolution in legislative thinking, possibly influenced by changes in the economy, investment patterns, and tax policy objectives over time.

4. Policy Implications: The more detailed approach in Clause 108 may indicate a shift towards greater specificity in tax legislation, aiming to address complexities in modern financial transactions and asset management.

Conclusion

Clause 108 of the Income Tax Bill, 2025, represents a significant evolution in the legislative framework governing the set-off of losses under the same head of income. By providing clear guidelines and distinctions, particularly in relation to capital assets, the provision enhances the clarity and predictability of tax outcomes for taxpayers. As tax laws continue to evolve, Clause 108 may serve as a model for future legislative reforms aimed at aligning domestic tax provisions with international best practices.

Full Text:

Clause 108 Set off of losses under the same head of income.

Dated: 8-4-2025