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ITAT Delhi Allows Carry Forward of Capital Loss on Sale of Shares Despite Section 10(38) Exemption

Case Law Details

TaxGuru Citation
2025 taxguru.in 10381
Case Name
Sahara India Corp Investment Ltd. Vs ACIT (ITAT Delhi)
Date of Judgement/Order
Only available for paid members
Related Assessment Year
2017-18
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Sahara India Corp Investment Ltd. Vs ACIT (ITAT Delhi)

Sahara India NBFC’s Share Loss Not Business Loss, Yet Eligible for Set-Off in Future -Accounting Classification Decides Nature of Loss, Not NBFC Status

Assessee, an NBFC engaged in financing, claimed ₹5.00 crore loss on sale of Pipavav Defence & Offshore Engineering Co. Ltd. shares as business loss. AO held it as capital loss, since shares were reflected as non-current investments in balance sheet, not as stock-in-trade, & were sold pursuant to Supreme Court’s directions.

CIT(A) affirmed, observing that the investment was held for over three years, no trading motive was shown, & transaction was not business-driven. CIT(A) also denied carry-forward of the loss, reasoning that since long-term capital gains were exempt u/s 10(38) during F.Y.2016-17, corresponding losses could not be carried forward.

Before Tribunal, Assessee argued that as an NBFC, share transactions formed part of its business activity; alternatively, even if capital in nature, loss should be eligible for carry-forward per decisions in Raptakos Brett & Co. Ltd., Bennett Coleman, Rare Investments, & Shiv Kumar Jatia. Department relied on CIT(A)’s reasoning.

ITAT noted that the shares had always been shown as investment, never as trading stock, & were held for 3½ years. The sale arose under Supreme Court directions; hence the intention was investment, not trading. Relying on Associated Industrial Development Co. (P) Ltd. (82 ITR 586, SC) & Bhanuprasad D. Trivedi (HUF) (Guj HC), Tribunal upheld CIT(A)’s view treating the loss as capital loss. However, on the alternate plea, Tribunal held that carry-forward of such capital loss cannot be denied, since s.10(38) exempts only long-term capital gains, not losses. Following Raptakos Brett & Co. Ltd. & other coordinate bench rulings, AO was directed to allow carry-forward of LTCL as per law.

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Author Info

CA Vijayakumar Shetty
Qualification: CA in Practice
Company: Shetty & Co, Chartered Accountants, Mangalore
Location: Mangalore, Karnataka
Articles Published: 6,844

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