TMI Blog2016 (12) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... t entitled to claim set off of the brought forward loss of the amalgamating company against its income for the year under consideration. We, therefore, set aside the impugned order of the ld. CIT(Appeals) giving relief to the assessee on this issue and restore that of the Assessing Officer. Addition on account of belated payment of employees' contribution towards P.F. and E.S.I. after the expiry of due dates prescribed in the relevant Statute but before the date of filing the return of income for the year under consideration - Held that:- Both the sides have agreed that the same is squarely covered in favour of the assessee, inter alia, by the decision of the Hon'ble Supreme Court in the case of CIT -vs.- Alom Extrusions Limited [2009 (11) TMI 27 - SUPREME COURT ] and CIT -vs.- Vinay Cement Limited [2007 (3) TMI 346 - Supreme Court of India]. Respectfully following the ratio laid down by the Hon'ble Supreme Court in these cases, we uphold the impugned order of the ld. CIT(Appeals) giving relief to the assessee on this issue Addition on account of short-term capital gain on sale of property by applying the provisions of section 50C - Held that:- We find merit in this contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmal provisions of the Act, the brought forward depreciation loss of the amalgamating company pertaining to A.Y. 2003-04 and 2004-05 amounting to ₹ 84,22,538/- was set off by the assessee-company against its income for the year under consideration. The claim of the assessee for such set off was examined by the Assessing Officer as per the relevant provisions of section 72A of the Income Tax Act, 1961 read with Rule 9C of the Income Tax Rules, 1962. On such examination, he found that one of the conditions to be satisfied in order to claim such set off was that the amalgamating company should be engaged in the business in which the accumulated loss occurred or depreciation remained unabsorbed, for three or more years. In this regard, he noted that even though the date of incorporation of M/s. Surya Kiran Udyog Pvt. Ltd. (amalgamating company) was 13.09.2001, it was in the process of setting up Plant upto 31.03.2001 and there was no commencement of business at all till that date. According to him, the said amalgamating company thus was not engaged in the business, in which the accumulated loss occurred or depreciation remained unabsorbed, for three years or more and the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess for more than three years was duly satisfied. 6. The ld. counsel for the assessee, on the other hand, contended that the effective date of amalgamation was 01.04.2004 as approved in the order of the Hon'ble Calcutta High Court. He contended that the amalgamating company however was engaged in the business of manufacturing ball pen tips right from 13.10.2001 when the first payment was made by it for purchase of machinery. He contended that the first year of business operation in case of amalgamating company thus was completed on 31.03.2002 itself and the condition of being in the business of three years or more on the date of amalgamation, i.e. 01.04.2004 was duly satisfied. In this regard, he relied on the definition of 'previous year' given in section 3 of the Income Tax Act, which provides that in the case of a business or profession newly set up in any financial year, the previous year shall be the period beginning with the date of setting up the business or profession and ending with the relevant financial year. He also contended that since the definition of 'year' is not given in the relevant provisions of section 72A of the Act, the definition of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not defined either in the relevant provisions of section 72A of the Income Tax Act or anywhere else in the said Statute and in the absence of the same, one has to look into the meaning as assigned to the said word in the General Clauses Act. Section 3(66) of the General Clauses Act defines year to mean a Calendar Year reckoned according to the British Calendar. The General Clauses Act is, as its very nature implies, a general Act subject to the particular context. If there is nothing else to guide the Court in the particular case, regarding the year, then the year has to be taken as a calendar year. No doubt, the text of the relevant provisions, in which the word 'year' is used and the context in which such word has been used along with the legislative intention has to be taken into consideration while assigning any meaning to the said word. If the text and context of the relevant provisions of section 72A in this regard are taken into consideration, we find that the period of three or more years as specified therein clearly signifies three or more calendar years and not certainly three or more previous years as defined in section 3 of the Act. The term 'previous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30/-on sale of property as worked out by reducing the cost of acquisition of ₹ 3,14,31,770/- from the sale consideration of ₹ 3,47,96,200/- as per the relevant sale deed. In this regard, it was noticed by the Assessing Officer that the value of the property sold by the assessee as adopted or assessed by the concerned authority of the State Government for the purpose of payment of stamp duty was ₹ 3,87,03,700/-. Applying the provisions of section 50C, he adopted the said value as deemed sale consideration of the property sold by the assessee and recomputed the short-term capital gain at ₹ 72,71,930/- resulting in addition of ₹ 39,07,500/- to the total income of the assessee on account of short-term capital gain. On appeal, the ld. CIT(Appeals) upheld the action of the Assessing Officer on this issue. 12. We have heard the arguments of both the sides on this issue and also perused the relevant material available on record. Relying on the various decisions of the Tribunal, the ld. counsel for the assessee has contended that the property in question transferred by the assessee-company during the year under consideration being in the nature of booking ri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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