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Income Tax Appellate Tribunal, BENCH ‘C’ KOLKATA
Before: Hon’ble Shri N.V.Vasudevan, JM & Shri M.Balaganesh, AM ]
IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH ‘C’ KOLKATA [Before Hon’ble Shri N.V.Vasudevan, JM & Shri M.Balaganesh, AM ] ITA No.601/Kol/2014 Assessment Year : 2012-13
D.C.I.T., Central Circle-XIX, -versus- M/.s. Atha Mines Pvt. Ltd. Kolkata Kolkata (PAN:AAFCA 7172 D) (Appellant) (Respondent)
For the Appellant: Shri G.Mallikarjuna, CIT(DR) For the Respondent: Shri A.K.Tibrewal, FCA
Date of Hearing : 29.03.2017 Date of Pronouncement :
ORDER PER N.V.VASUDEVAN, JM: This is an appeal by the Revenue is directed against the order dated 20.01.2014 of CIT(A)-Central-II, Kolkata relating to A.Y.2012-13. 2. Grounds of appeal raised by the revenue read as follows :- “ 1.That on the facts and circumstances of the case and in law ld. CIT(A) has erred in directing to set off the business loss against the additional business income disclosed u/s.132( 4) of the I.T. Act. 2. That on the facts and circumstances of the case and in law Ld. CIT(A) has erred in not appreciating the fact that in its disclosure petition u/s.132( 4) the assessee categorically disclosed the additional business income as “ Other Income" arising from unaccounted and undisclosed business of steel trading. 3. That on the facts and circumstances of the case and in law Ld. CIT(A) has erred in not appreciating that the assessee has offered the additional income u/s. 132(4) for taxation and the same cannot be adjusted with the loss of regular business. 4. That the Department craves leaves to add, modify or alter any of the grounds of appeal and/or adduce additional evidence at the time of hearing of the case.”
The Assessee is a company. It is engaged in the business of iron ore, coal and coke. There was a search and seizure operation carried on u/s 132 of the Income Tax Act, 1961 (Act) in the Atha group of cases on 17.11.2011. The assessee was also subjected to a search of his business premises as he was part of the Atha Group. ITA No.601/Kol/2014-M/s. Atha Mines Pvt. Ltd. A.Y.2012-13 1
It is not in dispute that in the course of search so carried out, the key person of the group Shri Dilip Kumar Atha in his statement recorded u/s.132(4) of the Act at the time of search, offered a sum of Rs.30 crores in F.Y. 2011-2012 in the hands of M/s. Atha Mines Pvt. Ltd., the Assessee herein as profits earned in the relevant FY out of steel trading. In the return of income filed for assessment year 2012-13 the total income returned was Rs.15,08,95,420/- which was contrary to the income disclosed u/s.132(4) of the Act. On being asked to explain, the assessee company vide its letter dated 27-11-2012, inter alia submitted that the Assessee after the disclosure u/s.132(4) of the Act had to incur unanticipated interest cost and other expenditure in the midst of bad phase of the industry. It was submitted that in addition to the above, there was an unexpected and unforeseen loss in foreign exchange transactions of Rs.11,00,76,053/- in the financial year 2011-12. Such loss was on account of currency fluctuations between US Dollars and Indian Rupees. The Assessee also filed detailed chart and documents in support of claim of such foreign exchange fluctuation loss of Rs. 11,00,76,053/- in F. Y. 2011-12. The Assessee submitted that all the above factors resulted in reduction of income F. Y. 2011-12 which stood at Rs.15,08,95,420/- (taxable profit and Rs.15,04,24,431 /- as book profit). It was the plea of the Assessee that the provisions of the Act was very clear in so far as the business loss has to be set off· against business profit and hence the question of treating the disclosure income of' Rs. 30 Crores separately from the regular income / loss in FY 2011-12 does not arise and thus the amount of Rs. 30 Crores cannot be taxed separately and the loss of Rs. 14,91,04,580/- cannot be computed separately and carried forward for set off in subsequent years. 5. The AO did not agree with the submissions made on behalf of the Assessee. According to the AO, the disclosure in the course of search u/s.132(4) of the Act of Rs.30 crores as income not disclosed that the same will be offered to tax in the return of income to be filed was additional income and is beyond the scope of any adjustment against any other loss. According to the AO, the adjustment of loss on account of forex loss and incurring of finance costs were all after thought and were intended to reduce the additional income offered for taxation during the search
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operation u/s.132 of the Act. In this regard the AO also culled out the turnover and profits shown by the Assessee in FY 2010-11 and 2011-12 which was a turnover of Rs.339 crores and Net Profit of Rs.27.12 crores and turnover of Rs.313 crores and Net Profit of Rs.15.04 crores respectively. According to the AO, the above figures proved that the Assessee with a view to reduce the income declared in the course of search has as an after though claimed that there were forex loss and finance costs with the intention of reducing income offered u/s 132(4) of the Act. 6. The AO therefore refused to adjust the loss arising- out of the post search transactions viz., Forex loss or Finance costs against the additional income of- Rs.30 crores offered for taxation u/s.132(4) of the I.T Act. The AO however accepted that the forex loss and finance costs were genuine and that loss on account of the above viz., a sum of Rs.14,90,97,080/- was loss from Business and Profession of the current year and he allowed the said loss to be carried forward and set-off against the incomes of the subsequent years. Subject to the observations made above, the total income of of the Assessee for the Assessment Year-20I2-13 was computed here as under:- Computation of Total Income Profit & Gains of Business or. Profession Net profit / Loss as per P&L A/c. Rs.15,04,24,431/- Less: Other Income {Disclosure u/s 132(4)} - considered separately Rs.30,00,00,000/- (-) Rs.14,95,75,569/- Add: Depreciation taken separately Rs.75,880/- Add: Penalty for delay in T.D.S. Rs. 3,000/- Add: Penalty for Sales Tax Rs.4,01,895/- Add;Donation considered u/s 80G Rs.15,000/- Rs. 4,95,775/- (-) Rs.14,90,79.,794/- Less :Depreciation as per IT Rules Rs.4,19,309/- Dividend exempt u/s 10(34) Rs.1,54,723/- Rs. 5,74,032/- (-) Rs.14,96,53,826/- Disallowed u/s 36(1)(va) Rs.5,56,746/- (-) Rs.14,90,97,080/- Book profit Rs.,15,04,24,431/-
Additional income offered for Taxation u/s 132(4) of the ITActRs.30,00,00,000/- (Not to be adjusted against Business Loss as discussed in para 6 above)
TOTAL INCOME Rs.30,00,00,000/-
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Business Loss of Rs.14,90,97,080/- is allowed to be carried forward. Assessed u/s 143(3) of the Act as above.
Aggrieved by the order of AO the assessee preferred an appeal before CIT(A). Before CIT(A) the Assessee submitted that the AO has accepted the forex loss and finance cost as genuine business expenses and therefore u/s.70 (1) of the Act which provides that where in respect of any Assessment year, in respect of any source falling under any head of income, other than “Capital Gains”, is a loss, the Assessee shall be entitled to have the amount of such loss set off against his income from any other source under the same head, be entitled to have the amount of such loss set off against his income, if any, assessable for that assessment year under any other head, the AO ought to have allowed the claim of the Assessee. The CIT(A) was of the view that the loss in question ought to have been allowed by the AO in the light of the admitted position that the loss and finance costs were genuine business losses. In this regard, the CIT(A) found that the sum of Rs.30 Crores offered to tax in the statement u/s.132(4) of the Act was duly credited in the profit and loss account by the Assessee. On the stand taken by the AO that the forex loss and finance costs that went to reduce the income of Rs.30 crores was after thought on the part of the Assessee, the CIT(A) found that forex loss incurred by the Assessee was not post search event to reduce the taxability of additional income as alleged by him. He found that forex transactions were carried out by the Assessee throughout the relevant financial year and not post search period. He also found from the details of the forex loss that both in pre and post search period there was gain as well as the loss in foreign exchange transactions. But, at the year end, there was overall loss which was debited by the Assessee to the profit and loss account and that the AO did not find any discrepancy or fault in the details submitted by the Assessee and therefore forex loss cannot be said to be an item of loss which was after thought of the Assessee to reduce the income of Rs.30 Crores surrendered at the time of search. The CIT(A) also found that the Assessee had taken loan from the banks and the financial institutions for the purpose of its business and incurred the financial costs and that they were for the purpose of business of the Assessee was not disputed by the AO. He therefore concluded that once an assessee ITA No.601/Kol/2014-M/s. Atha Mines Pvt. Ltd. A.Y.2012-13 4
has taken loan from the bank for the purpose of its business, the financial cost has to be allowed as deduction u/s 36 (l)(iii) of the Act. He also found that forex loss and financial costs were also incurred by the Assessee in the immediately preceding year and allowed by the AO as deduction. The CIT(A) therefore held that the forex loss and financial costs were not incurred by the Assessee in the year under consideration for the first time to reduce the taxability of the additional income offered for taxation. The CIT(A) held that there was no provision in the Act by the application of which the assessed income could be determined at Rs.30 crores and carry forward of the loss of Rs.14,90,97,080/- could be made. He held that in the light of the provisions of section 70 of the Act which provide for the set off of loss from one source against income from another source under the same head of income and in particular section 70(1) of the Act, which provides where the net result for any assessment year in respect of any source falling under any head of income, other than "Capital gains", is a loss, the assessee shall be entitled to have the amount of such loss set off against his income from any other source under the same head, there was no reason why the set off pleaded by the Assessee should be disallowed by the AO. The CIT(A) accordingly directed the AO to allow the claim of the Assessee. 8. Aggrieved by the order of the CIT(A), the revenue has preferred the present appeal before the Tribunal. The learned DR relied on the order of the AO. The learned counsel for the Assessee relied on the order of the CIT(A) and submissions made before the CIT(A). He also made reference to Sec.71(1) of the Act and submitted that even those provisions permit set off as claimed by the Assessee. 9. We have carefully considered the rival submissions. On careful consideration of the facts of the case and the provisions of Sec.70(1) of the Act, we are of the view that the order of the CIT(A) does not call for any interference. The only basis on which the AO could have successfully denied the claim of the Assessee was to show that the forex loss and finance cost were incurred post search with a view to reduce the income surrendered in the course of search. The finding of fact by the CIT(A) in this regard is that forex loss incurred by the Assessee was not post search event to reduce the taxability of additional income as alleged by him as forex transactions were carried
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out by the Assessee throughout the relevant financial year and not post search period. He also found from the details of the forex loss that both in pre and post search period there was gain as well as the loss in foreign exchange transactions. But, at the year end, there was overall loss which was debited by the Assessee to the profit and loss account and that the AO did not find any discrepancy or fault in the details submitted by the Assessee. The CIT(A) also found that the Assessee had taken loan from the banks and the financial institutions for the purpose of its business and incurred the financial costs and that they were for the purpose of business of the Assessee was not disputed by the AO. These costs were also not post search event. The CIT(A) also found that similar costs were incurred in the earlier financial years and allowed by the Revenue as deduction in the earlier assessments of the Assessee for those Assessment years. This finding of fact was not challenged before us as these facts were not disputed even by the AO in the order of Assessment. Therefore forex loss and financial costs were not incurred by the Assessee in the year under consideration for the first time to reduce the taxability of the additional income offered for taxation. 10. Once the above conclusions are not disputed than the provisions of section 70 of the Act which provide for the set off of loss from one source against income from another source under the same head of income will automatically come into operation. It is not disputed that the sum of Rs.30 crores offered to tax in the course of search was duly credited in the profit and loss account. Thus the Assessee has complied with the surrender made at the time of surrender. There is nothing brought on record by the revenue to show that the sum of Rs.30 crores offered in the course of search as undisclosed income was net of any other loss of the Assessee. In the circumstances, as per the provisions of section 70(1) of the Act, which provides that where the net result for any assessment year in respect of any source falling under any head of income, other than "Capital gains", is a loss, the assessee shall be entitled to have the amount of such loss set off against his income from any other source under the same head, will apply. In the case of Assessee there is no dispute that the loss of Rs.14,90,97,080/- computed by the AO as per the assessment order is business loss and the additional income of Rs.30 crores admitted by the Assessee in the course of
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search operation is the business income. Thus they are income and loss under the same head from different sources. Both the loss and income are assessable under the head "Profit and gains from Business or Profession". Thus, as per the provisions of section 70(1) of the Act, loss incurred by the Assessee from one source is allowable as set off from the income of another source under the same head. Therefore, in view of specific provision under the Act, there is no reason to assess the business income of Rs.30 crores separately and allow the carry forward of the business loss of Rs.14,90,97,080/-. The action of the AO in doing so was contrary to the provisions of the Act. We therefore find no grounds to interfere with the order of the CIT(A) which is in accordance with the provisions of law rightly applied to the facts of the case. Consequently, we dismiss the appeal by the revenue. 11. In the result, the appeal by the revenue is dismissed. Order pronounced in the Court on 05.04.2017.
Sd/- Sd/- [M.Balaganesh ] [ N.V.Vasudevan ] Accountant Member Judicial Member Dated : 05.04.2017. [RG PS]
Copy of the order forwarded to: 1.M/s. Atha Mines Pvt. Ltd.,91A/1, park Street, Avani Signature, 6th Floor, Kolkata- 700016. 2. .D.C.I.T., Central Circle-XIX, Kolkata 3. C.I.T.(A)-Central-II, Kolkata 4. C.I.T.- II, Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata.