1997 (1) TMI 73 - SUPREME Court
Commissioner Of Income-Tax Versus Concord Industries Ltd.
Loss, Carry Forward And Set Off ......
........... n and development rebate ? We have heard Shri Ranbir Chandra, learned counsel appearing for the Revenue, in support of the appeal. One of the conditions for the applicability of section 79 is that there should be a change in the shareholding of the company. Shri Ranbir Chandra has not been able to show that a finding has been recorded by any authority regarding the change of shareholding of the company for the applicability of section 79. We, therefore, do not find any merit in the appeal and it is accordingly dismissed. No order as to costs.
1995 (12) TMI 52 - MADHYA PRADESH High Court
Commissioner Of Income-Tax Versus Acme Paper Limited
Burden Of Proof, Carry Forward And Set Off, Change In Shareholding ......
........... the view taken by the Tribunal is well founded that it was one of the first conditions to deny this benefit clause to record the finding that any change in shareholding was effected with a view to avoiding or reducing any liability to tax. Since there is no positive finding that this change in shareholding was done for the purpose of avoiding or reducing the tax liability, then in that case, there was no option with the Tribunal, but to permit the set off of the losses during the assessment year 1978-79. This was permitted obviously that there was no such reason for avoiding or reducing the tax liability. The Tribunal has allowed the setoff on being satisfied that the change in shareholding was not effected with a view to avoiding or reducing the tax liability. Therefore, in this view of the matter, the view taken by the Tribunal appears to be justified. Hence, this reference is answered against the Revenue and in favour of the assessee. The reference is answered accordingly.
1995 (11) TMI 62 - GUJARAT High Court
Commissioner Of Income-Tax Versus Hindustan Marbles Limited
Carry Forward And Set Off, Industrial Company, Set Off Of Loss, Substantially Interested ......
........... in favour of the assessee and against the Revenue. Coming to question No. 3, we find that the Tribunal has referred to its order in the assessee s own case for the assessment year 1975-76, which has been followed by it, and while deciding the appeal out of which this reference has arisen it recorded the finding that a major portion of the assessee s income pertains to processing of marbles, and has also recorded that the Income-tax Officer himself in his order has observed that the assessee-company has got business as in the past, namely, cutting and processing of marble slabs. On the aforesaid premises and more particularly in view of the absence of any material showing that the assessee was engaged in any other business, in our opinion, the Tribunal has rightly come to the finding that the assessee is an industrial company and has to be charged to tax at the rate applicable to the industrial company. Accordingly, the reference stands disposed of with no order as to costs.
1995 (9) TMI 2 - SUPREME Court
Commissioner of Income-Tax Versus Shri Subhulaxmi Mills Ltd.
Whether, the finding of the Tribunal that in applying section 79 of the Act, only the business loss should be taken into account and not the unabsorbed depreciation or unabsorbed development rebate, is erroneous in law - Held, no, because when s. 79 ......
1994 (12) TMI 34 - MADRAS High Court
Commissioner Of Income-Tax Versus Chapparai Transport Private Limited
Change In Shareholding, Substantially Interested, Tax Liability, Unabsorbed Depreciation ......
........... eciation. The Commissioner of Income-tax (Appeals) further held that the unabsorbed depreciation should be given the same treatment as that of the current depreciation as per section 32(2) of the Act. On further appeal, the Appellate Tribunal upheld the order passed by the Commissioner of Income-tax (Appeals). The question of carry forward of the loss of the earlier years was decided in favour of the assessee applying the decision of the Bombay High Court in Italindia Cotton Co. P. Ltd. v. CIT 1978 113 ITR 58. Subsequently, the said decision has been approved by the Supreme Court in the decision in CIT v. Italindia Cotton Co. P. Ltd. 1988 174 ITR 160. So also, the question of carry forward of unabsorbed depreciation to future years is covered in favour of the assessee by a decision of this court in CIT v. Concord Industries Ltd. 1979 119 ITR 458. Accordingly, we answer the question referred to us in the affirmative and against the Revenue. There will be no order as to costs.
1994 (3) TMI 123 - ITAT AHMEDABAD-A
NOFELOY PLASMOLD (P) LTD. Versus DEPUTY COMMISSIONER OF INCOME TAX.
........... he year in question and was not claimed in the previous year, the learned ITO should have allowed this and accordingly this ground is allowed and the ITO is directed to allow this amount as claimed by the assessee. 22. The last ground No. 5 relates to a disallowance of Rs. 8,211 by ITO being interest paid to the G.S.F.C. Term Loan. According to AO the assessee was fully knowing that the liability of this term loan should have been claimed in the year of accrual and once he has not claimed in the relevant year, it is not allowable during this year. This ground of the assessee is not tenable in view of the fact that assessee was maintaining a/c on mercantile basis and he must have been aware of his liability accruing on the term loan obtained from the G.S.F.C. and should have claimed in the year of accrual. Accordingly there is no force in this ground and reasonings of the authorities below is upheld. 23. The result of the above is that the appeal of assessee is party allowed.
1993 (9) TMI 51 - GUJARAT High Court
Commissioner Of Income-Tax Versus Hindustan Marbles Private Limited
Carry Forward And Set Off, Change In Shareholding, Set Off Of Loss, Substantially Interested ......
........... decision of this court in the case of Shri Subhlaxmi Mills Ltd. 1983 143 ITR 863 which has been relied on by the Tribunal. In view of the aforesaid settled legal position, in our view, the Tribunal was right in holding that the provisions of section 79 of the Act were not attracted in the instant case because the shares of the company were transferred in 1970 while the relevant assessment year is 1975-76 and for that there was no change in the previous year. Further, for the relevant year, i.e., 1971-72, the Income-tax Officer was convinced that the change in the shareholding was not effected with a view to avoiding or reducing any liability to tax. Hence, the assessee-company was entitled to set-off of carried forward business losses of the assessment years 1969-70 and 1970-71. In the result, questions Nos. 1 and 2 are answered in the affirmative, i.e., in favour of the assessee and against the Revenue. The reference stands disposed of accordingly with no order as to costs.
1993 (8) TMI 14 - GUJARAT High Court
Commissioner Of Income-Tax Versus Ahmedabad Flexible Tube Manufacturing Co. Limited
Carry Forward And Set Off, Change In Shareholding, Depreciation And Development Rebate, Liability To Tax, Unabsorbed Depreciation ......
........... is entitled to the benefit of the provisions relating to carry forward and set-off of losses. So far as question No. 2 is concerned, we have already stated above that the Tribunal has, as a matter of fact, found that at the time when the Shah family acquired the shares that was not done with the motive of reducing the tax liability of the assessee. That being a finding of fact, we have to accept it and, obviously, the question which is now referred to us will have to be answered in the context of the facts as found by the Tribunal. Since the Tribunal has found that the acquisition of shares was not with a view to reduce or avoid any tax liability, the disqualification contemplated by section 79 was, therefore, not attracted in this case and the Tribunal was right in taking that view. For the reasons stated above, we decline to answer question No. 1. Question No. 2 is answered in the affirmative, that is, against the Revenue and in favour of the assessee. No order as to costs.
1992 (8) TMI 51 - ALLAHABAD High Court
Commissioner Of Income-Tax Versus UP. Poorvanchal Vikas Nigam
Company, Loss ......
........... pure finding of fact. The assessee-company having clearly established the conditions of clause (b) of section 79 to the satisfaction of the Appellate Tribunal, it was rightly held by the Tribunal that the benefit of set off could not be denied to the assessee-company, as section 79 never intended to hit companies which effected change in the share holding, without any intention to avoid or reduce their tax liability. For the above reasons, we answer the first part of the question referred to this court in the affirmative, that is, in favour of the assessee and against the Revenue. No answer need be given on the second part of the question reproducing the reasoning of the Tribunal, which is of no consequence, inasmuch as the Tribunal itself further recorded a finding of fact that the change in the shareholding was per se bona fide and that the case of the assessee-company is fully covered by the exception as stated in clause (b) of section 79 of the Act. No order as to costs.
1990 (2) TMI 17 - CALCUTTA High Court
Karala Valley Tea Co. Limited Versus Commissioner Of Income-Tax
Carry Forward And Set Off In Private Company, Company, Loss ......
........... to year which could not be ignored. In our view, both the Income-tax Officer and the Tribunal were wholly wrong in holding that the change of shareholding of Guha Roy Group to Mehra Group was effected with a view to avoiding or reducing the tax liability. In view of the fact that, in view of the financial difficulties, the company was transferred to Mehra Group which was the creditor of the company for about Rs. 25 lakhs. When the creditor company came forward and purchased the controlling interest from the Guha Roy Group, it cannot be said to be a case of not a bona fide commercial transaction. In the facts and circumstances of the case, it is clear that there is no intention to reduce or avoid tax liability. In view of the above, questions Nos. 2 and 3 are answered in the negative and in favour of the assessee and, in the facts and circumstances of the case, there is no need to answer questions Nos. 1 and 4. There will be no order as to costs. AJIT K. SENGUPTA J. -I agree.
1989 (9) TMI 35 - KERALA High Court
Commissioner Of Income-Tax Versus Malabar Trading Corporation Pvt. Limited
Burden Of Proof, Closely Held Company, Loss ......
........... , it was for the assessee to show that clause (b) is attracted. The matter should be approached from that perspective or angle. The Tribunal has failed to approach the question from that angle. We are of the view that the Tribunal erred in law in coming to the conclusion which it did, based on the above erroneous approach of the question involved. In this view of the matter, we decline to answer the question referred to us but at the same time, we direct the Income-tax Appellate Tribunal to restore the appeal to its file and decide the matter afresh in the light of the decision of the Supreme Court in Italindia Cotton Co. P. Ltd. s case 1988 174 ITR 160, particularly bearing in mind the observations contained in page 165, extracted hereinabove. It is open to the parties to lead fresh material to substantiate their pleas. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.
1989 (7) TMI 14 - CALCUTTA High Court
Metro Theatre Calcutta Limited Versus Commissioner Of Income-Tax
Closely Held Company, Loss ......
........... benefit is available notwithstanding the change in the shareholding in the previous year if the change was not effected with a view to avoiding or reducing any liability to tax. The assessee has shown that the change was effected for business and commercial reasons and not in order that the tax liability may be avoided or reduced. The finding of the Commissioner of Incometax (Appeals) and the Tribunal had not been challenged before us. The Commissioner of Income-tax (Appeals) found on facts that there is no question of any Indian tax liability in view of the losses suffered by the non-resident companies and, accordingly, the Income-tax Officer has not made out any case whatsoever for invoking the provisions of section 79(b) of the Act. For the reasons aforesaid, we answer these questions, referred at the instance of the Revenue, in the affirmative and in favour of the assessee and against the Revenue. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. -I agree.
1988 (11) TMI 35 - PUNJAB AND HARYANA High Court
MD Traders And Chit Fund Financiers Private Limited Versus Commissioner Of Income-Tax
Carry Forward And Set Off, Closely Held Company, Loss ......
........... n both the assessment years 1974-75 and 1976-77. The Income-tax Officer will bear in mind these observations while disposing of this issue for the assessment years 1974-75 and 1976-77. It is not clear to us whether, for the assessment year 1974-75, the assessee had also claimed the set off of loss for the assessment year 1971-72 in addition to the loss for the assessment year 1970-71. However, the Income-tax Officer can go into this aspect at the time of fresh disposal of this issue. After going through the facts of the case and keeping in view the findings recorded by the Tribunal which have been quoted above, we are of the opinion that the provisions of section 79(a) of the Income-tax Act, 1961, are clearly attracted. We are of the view that the Tribunal placed a correct interpretation on the provisions of the aforesaid section. As a result, we answer both the questions in the affirmative, that is, in favour of the Revenue and against the assessee with no order as to costs.
1988 (9) TMI 1 - SUPREME Court
Commissioner of Income-Tax, Bombay Versus Italindia Cotton Co. Pvt. Limited
Whether both the conditions mentioned in clause (a) & clause (b) of section 79 must apply for disentitling the loss of a prior year being allowed as set-off in accordance with the substantive provisions of s. 79 - to avoid falling within the scope of ......
1986 (12) TMI 63 - ITAT CALCUTTA-D
Eastern Circuit (P.) Ltd. Versus Inspecting Assistant Commissioner
Carry Forward And Set Off Of Loss, Loss ......
........... erred to the assessee. Right of distribution of the other film Kohinoor was transferred to the assessee in the assessment year 1979-80 and that of Noorie in the assessment year 1980-81 and that of Azad about five years thereafter. Thus, by the mere fact that in subsequent years right of distribution of the profit-earning films was transferred to the assessee-company it cannot be straightaway said that there was lurking intention of avoiding tax liability. We, therefore, find that it could not be established that the condition of clause (b) of section 79 was satisfied in the assessment year 1977-78. The assessee was, therefore, entitled to redetermination of losses to be carried forward from the assessment year 1977-78 and 1978-79. The ITO shall verify the calculations given by us above and shall allow set off of the balance of losses in the assessment year 1978-79 which according to the figures furnished to us works out at Rs. 92,175. 10. In the result, the appeal is allowed.