Gouranga Cement Pvt. Ltd. Vs DCIT (ITAT Kolkata)
It is undisputed fact that the assessee has the earned the long term capital income by way of transfer of the business assets such as factory building, Plant & Machinery, electric installation under the head slum sale. Thus the nature of LTCG is in the nature of business profit & gains which is liable to be taxed under the head capital gain by virtue of the provisions of law. But the nature of LTCG is business only as discussed in the case of Digital Electronics Ltd.(supra). Therefore, AO was directed to set off the business loss against the business income and the remaining loss should be set off against the long term capital gain.
FULL TEXT OF THE ITAT JUDGMENT
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals), Durgapur dated 28.11.2016. Assessment was framed by DCIT, Circle- Bankura u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 25.03.2013 for assessment year 2010-11. The grounds raised by the assessee per its appeal are as under:-
1. For that the order of assessment passed u/s. 143(3) and sustained by the Ld. CIT(A), Durgapur is arbitrary, illegal and bad both in law and fact.
2. For that the Ld. CIT(A), Durgapur, in consideration of the facts and circumstances of the case, erred in sustaining order of the AO in making adjustment of unabsorbed business loss of Rs.16,64,524/- of the earlier year against capital gain.
3. For that the Ld. AO in consideration of facts and circumstances of the case is not justified to adjust unabsorbed business loss of the earlier year against capital gain during the year.
4. For that the Ld. AO in consideration of the facts and circumstances of the case, erred in charging interest for Rs.1,598/- u/s. 234A and Rs.3,71,166/- u/s. 234C of the Income Tax Act, 1961.
