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You have raised very good point.

In BS Srinivasa Shetty, SC had to consider what would happen to case where assessee sold asset for which cost was not determinable. The Court held that s. 48 was an integrated section and that it reqd deduction of cost from consideration for dertermining gain. It was held that if imp com[ponent is not applyicable, then the whole machinery provision fails and capitals gain is not exigible.

Applying same logic to present case, s. 115 J requires comparision of accumulated loss with unabsorbed depr and assessee allowed whichever is lesser.

But if there is nothing to compare than how you will apply provision. You cannot say that whole provision will not apply because that is against intention of legislature. see Surana Stells whre SC has set out that the intention of privision is to give relief to loss-making provision.

In my view, correct way is to ignore the requirement of 'whichever is less;' and give assessee benefit of business loss.

Patil.

I agree with theory but in practice 2 years will have passed by time AO makes assessment. AO will ask why you have not charged interest. Is it really loan or gift in disguise? So yiou have too be careful that it is really loan with repayment, security and reason for non-interest charging etc.

patil

can you give link to article

I think question is in context of sec 14A which provide that no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of total income under the Act.

S. A. Builders SC decision will only establish that the borrowing was for business purpose however that is not enough. The further question is whether the borrowing is to earn taxable income or tax-free income.

I am of view that the case made by the Querist i.e. that the profits made by the partnes though tax-freee should be considered to have suffered tax in firms' hands is a sound and good argument. Otherwise you are streching the fiction of sect 14A beyond limit. Ultimately, consider what is the objective of legislature in enacting 14A. That assessee should not get unfair advantage.

Here he is not getting unfair advantage because if you merege firm abd partner what you have is that expenditure has been incurred by partner and income THEREFROM has been earned by firm which is taxable. If firm had borrowed moneys and invested in business you would have granted deduction, then why distinction should be made when borrower is partner but beneficiary is firm<

Patil.

good to have such important caselaw in one place. thanks for same,

patil

thanks very much. I agree it makes big case for arguing that profession tax is not chargeable to tax. thanks for same.

Patil.

cant find case  ???. can u check citation pl.

Patil.

Thanks for bringing attention. I was not aware of controversy. I agree Mumbai bench judgement is too narrow and incorrect.

sounds good but how to get on band wagon? ??? ??? You have business plan by chance ? pls share  :-*

patil

i see the point but i am not knowing a answer  ??? hope some wise guru will give light on problem  :-\

Navin Bharat is reported in 90 ITD 1 Hexa is not reported.  ;DIf i get copy i will send it to you.

I am in favor because i think NTT is a dumping grpond for retired babus.  ::)SC is correct that such powers cannot be given to babus as it will misuse. babus are for pushing files and not for giving justice :'(

your request and mine is answered because judgment is there for download. Many thanks to site owner for quick reporting. Patil.

Does anybody know whther Special Bench on multiple houses for s. 54 order is available. It was heard  on March 2007 as per main page then whether order has been passed or not? If an anyone have information please give it urgently.  ??? Patil.

There is a controversy whether the deduction allowed u/s 80-HHC has to be reduced from the deduction allowable under s. 80-IA. There was a special bench on the issue in M/s Rogini Garments
(see http://www.itatonline.org/special_bench_matters.php). Is anybody aware whether that matter has been heard or not? Any other decisions on the issue?