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2017 (4) TMI 171 - AT - Income TaxPrincipal portion of loan waived by a bank assessed u/s 41(1) - provisions of sec. 28(iv) applicability - Held that:- Having regard to the submissions made by the parties, we are of the view that, in the interest of natural justice, the assessee may be given one more opportunity to prove actual utilisation of loan. Further, as observed by us in the earlier paragraphs, there is confusion about the name of bank from which the loan was obtained. Further we are of the view that the assessee should be given an opportunity to explain as to why the provisions of sec. 28(iv) will not be applicable in this case. Accordingly we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of the AO for examining the same afresh. The assessee is directed to clarify about the name of the bank, demonstrate the actual utilisation of loan with necessary evidences to the satisfaction of the AO and to show as to how the provisions of sec. 28(iv) are not applicable. After hearing the assessee, the AO may take appropriate decision in accordance with the law. Quantum of unabsorbed depreciation & business loss brought forward from the earlier years that is eligible for set off - Held that:- Respectfully following the decision rendered by Hon’ble Gujarat High Court in the case of General Motors India P Ltd (2012 (8) TMI 714 - GUJARAT HIGH COURT ), we hold that the unabsorbed depreciation pertaining to AY 2000-01 should be allowed to be set off during the year under consideration. We have noticed that the AO had assessed the capital portion of loan waived by the bank as income of the assessee in AY 2008-09 and accordingly a part of brought forward unabsorbed depreciation was set off by the AO in AY 2008-09. Since the matter relating to assessment of capital portion of loan has been set aside by us to the file of the AO, we are of the view that the AO should decide the quantum of unabsorbed depreciation eligible for set off in AY 2009-10 after passing the assessment order for AY 2008-09 in the set aside proceedings. Accordingly this issue is restored to the file of the AO. - Decided in favour of assessee for statistical purposes.
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