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TMI Blog2017 (4) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... ing loss of (-) Rs. 16,36,296/-. The case was selected for scrutiny and the assessment was completed under section 143(3) of the Income Tax Act, 1961 (in short 'the Act') vide order dated 15.03.2013, wherein the assessee's loss was determined at Rs. 16,65,837/-. Aggrieved by the order of assessment dated 15.03.2013 for A.Y. 2010-11, the assessee preferred an appeal before the CIT(A)-23, Mumbai, challenging (i) the Assessing Officer's (AO) disallowance of Rs. 6,78,893/- out of travel expenses and (ii) the action of the AO in holding that long term capital gains (LTCG) of Rs. 17,04,000/- should be adjusted against business loss under section 71(2) of the Act. The learned CIT(A) dismissed the assessee's appeal vide the impugned order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowance of travel expenditure of Rs. 6,78,893/- made by the AO; without appreciating that these expenditures were expended wholly and exclusively for the purposes of its business and were wholly deductible, being reimbursement to customers and consultants. At the outset of the hearing, the learned A.R. of the assessee fairly conceded that this very issue is squarely covered against the assessee by the decision of the Coordinate Bench of this Tribunal by its order in assessee's own case for A.Y. 2009-10. 4.2.1 We have heard the rival contentions and perused and carefully considered the material on record; including the judicial pronouncements cited. We find that the very same issue of travelling expenses, was considered and adjudicated aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions raised by the assessee on the issue of disallowance of travel expenses of Rs. 6,78,893/- and accordingly decide this issue against the assessee. Consequently, grounds 1 and 2 of the assessee's appeal are dismissed. 5. Ground No. 3 - Set off of Business Loss against LTCG 5.1 In this ground, the assessee assails the order of the learned CIT(A) in holding that the business loss is to be set off against LTCG as per the provisions of section 71(2) of the Act. The learned A.R. of the assessee fairly conceded that this issue is squarely covered against the assessee by the decision of the Coordinate Bench of this Tribunal in the case of Sumaria Appliances Pvt. Ltd. vs. ACIT in ITA No. 2712/Mum/2012 dated 11.06.2014. 5.2.1 We have hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of this Chapter, be set off against his income, if any, assessable for that assessment year under any head of income including the head "Capital gains" (whether relating to shortterm capital assets or any other capital assets). 7.1 From the perusal of the aforementioned provision it is clear that section 71(1) will not be applicable to the case of the assessee as in the present case assessee has income under the head capital gain. Section 71(2) will be applicable as in the present case the assessee has computed loss under the head "income from business or profession". It is the contention of Ld. AR that word used in section 71(2) "may" gives an option to the assessee so as to whether adjust the said loss against capital gain or not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same against short term capital gain. 7.3 Reliance by the assessee on the decision of Hon'ble Bombay High Court in the case of CIT vs. British Insulation Calendars Ltd. (supra) is also misplaced as the said decision has not been rendered for the proposition which has been raised by the assessee in the present appeal. The issue in that case was whether or not dividend income of the assessee could be set off against business loss of the same year. Dividend income was taxable at the confessional rate. Therefore, according to assessee tax was to be charged on dividend income and business loss was to be carried forward to be set off against income of subsequent years. The Tribunal held that assessee had such option. It was held by their L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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