2010 (9) TMI 416 - AT - Income Tax

Tribunal allows partial appeal on loss disallowance under IT Act

ITO Versus MIDAS Powertech Pvt. Ltd.

The Tribunal partially allowed the revenue's appeal by upholding the disallowance of the loss of Rs. 30,74,808 under Section 94(7) of the IT Act, 1961, ... Disallowance of loss u/s 94(7) - During the course of assessment proceedings the AO found that the assessee company entered into transaction of purchase and sale of Sundaram Bond Saver (Mutual Fund) - The AO was of the view that since the units were sold within three months before the record date, therefore the falls under the provisions of section 94(7) of the Act - AO disallowed the loss to the extend of dividend received by the assessee of Rs. 30,74,808 - The learned AR further submitted that the units were purchased on 26/12/2003, thus they were not acquired prior to the record date but were acquired on the record date - The learned AR also contended the theme of logical interpretation and submitted that if the logical interpretation of see - When the law is very clear on the point of reckoning of limitation and expiry of limitation, then, in the case in hand the limitation starts on 27.12.2003 by excluding the record date - This issue is decided against the assessee and in favour of the Revenue Bogus transaction - As regard the balance amount of Rs. 370,393 when the transactions are between the non-related parties and the AO has not given any finding as to how the transaction is bogus - This issue is decided against the revenue and in favour of the assessee Issues Involved:1. Disallowance of loss of Rs. 30,74,808 under Section 94(7) of the IT Act, 1961.2. Disallowance of balance loss of Rs. 3,70,393 under Section 94(7) of the IT Act, 1961.Issue-wise Detailed Analysis:1. Disallowance of Loss of Rs. 30,74,808 under Section 94(7) of the IT Act, 1961:The assessee company engaged in various business activities including dealing in securities, purchased units of Sundaram Bond Saver (Mutual Fund) on 26.12.2003 and received a dividend of Rs. 30,74,808 on the same date. The units were sold on 26.03.2004, resulting in a loss which the assessee claimed against the profit from other securities. The Assessing Officer (AO) invoked Section 94(7) of the IT Act, 1961, disallowing the loss equivalent to the dividend received, arguing that the units were sold within three months of the record date.The CIT(A) allowed the assessee's claim, stating that the sale occurred after the expiry of three months from the record date. The CIT(A) held that the sale on 26.03.2004 was beyond the three-month period from the record date of 26.12.2003.Upon appeal, the Tribunal analyzed the provisions of Section 94(7), which state that if securities or units are bought within three months prior to the record date and sold within three months after the record date, any resulting loss up to the amount of the dividend received should be ignored for tax purposes. The Tribunal emphasized that the record date should be excluded when counting the three-month period prior to the record date, aligning with the general rule of computation of periods. Therefore, the Tribunal concluded that units purchased on the record date fall within the three-month period prior to the record date, and the sale on 26.03.2004 fell within the three-month period after the record date. Consequently, the Tribunal upheld the AO's disallowance of the loss of Rs. 30,74,808.2. Disallowance of Balance Loss of Rs. 3,70,393 under Section 94(7) of the IT Act, 1961:The AO also disallowed the balance loss of Rs. 3,70,393, arguing that the purchase and sale of units within a short period after realizing the dividend was not a genuine business transaction. The CIT(A) disagreed, stating that the transactions were conducted with non-related parties and could not be deemed non-genuine solely because they resulted in a loss.The Tribunal supported the CIT(A)'s view, noting that the AO had not provided any evidence to prove that the transactions were bogus. The Tribunal found no material or factual basis to question the genuineness of the transactions and thus upheld the CIT(A)'s decision to allow the balance loss of Rs. 3,70,393.Conclusion:The Tribunal's judgment resulted in a partial allowance of the revenue's appeal. The disallowance of the loss of Rs. 30,74,808 under Section 94(7) was upheld, while the disallowance of the balance loss of Rs. 3,70,393 was rejected. The appeal of the revenue was thus partly allowed, with the order pronounced in the open court on 30.9.2010.