CIT Vs. H.M. COLD STORAGE

JUDGEMENT

(1.) THE Income Tax Appellate Tribunal, Allahabad has referred the following question of law under section 256(1) of the Income Tax Act, 1961, (hereinafter referred to as 'the Act') for opinion to this court: 'Whether the Hon'ble Tribunal, on the facts and in the circumstances of the case, was correct in law in entertaining the assessee's claim with regard to relief under section 80J of the Income Tax Act, 1961, ignoring the real effect of the transfer of amount in the capital accounts of the partners of the firm which, in fact, represented loan account and does not fall within the purview of capital employed, disregarding the spirit of rule 19A of the Income -tax Rules, 1962

(2.) THE present reference relates to the assessment years 1981 -82,1983 -84 and 1984 -85.

(3.) WE find that the Apex Court in the case of Lohia Machines Ltd. v. Union of India : [1985]152ITR308(SC) , has held that borrowed capital has to be excluded for the purposes of determining the capital employed under section 80J of the Act. The amount in the present case has been transferred from loan account to the capital account of the partners and, therefore, for all practical purposes was borrowed capital and ought to have been excluded while determining the capital employed.