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2013 (11) TMI 906 - AT - Income TaxAddition u/s 41(1) of the Income Tax Act - initially amount shown as unsecured loans was treated as own money later on - Held that - Money was received by the assessee in course of carrying on his business. Although it was treated as deposit and was of capital nature at the point of time it was received, by influx of time the money has become the assessee s own money - The assessee itself has treated the money as its own money and taken the amount to its profits and loss account. There is no explanation from the assessee why the surplus money was taken to its profit and loss account even if it was somebody else s money. Reliance has been placed upon the CIT vs.T.V. Sundaram Iyenger & Sons Ltd. 1996 (9) TMI 1 - SUPREME Court - In the present case considering the fact that the firm is a sister concern of assessee, has dissolved w.e.f. 31-3-2006, no interest paid during the year under review, no material on record to prove that it has demanded the repayment of amount at any time nothing on record to demonstrate that assessee has paid the amount till date, A.O s action of making addition u/s. 41(1)cannot be faulted Decided against the Assessee.
Issues Involved:
1. Addition under Section 41(1) of the Income Tax Act due to cessation of liability. Detailed Analysis: Issue 1: Addition under Section 41(1) of the Income Tax Act due to cessation of liability Background: The assessee, a firm engaged in the business of shroff and cheque discounting, filed its return of income for the assessment year 2008-09 showing a total income of Rs.79,960/-. The case was selected for scrutiny, and the assessment was framed under Section 143(3) of the Income Tax Act, determining the total income at Rs.9,02,690/-. The addition of Rs.8,22,726/- was made under Section 41(1) as cessation of liability. The assessee appealed against this addition, but the CIT (A) dismissed the appeal. The assessee then appealed before the ITAT. Assessing Officer's Findings: During the assessment proceedings, the Assessing Officer noted that the assessee had taken an unsecured loan of Rs.8,22,726/- from Om Traders, which had been dissolved on 31-3-2006. The loan had not been squared up, and no interest was paid during the year. The dissolution deed stated that the firm's accounts were to be squared up, and the bank account closed. The Assessing Officer concluded that the loan liability was barred by limitation and had ceased to be operative, relying on the decision of CIT vs. T.V. Sundaram Iyenger & Sons Ltd., 222 ITR 344. Consequently, Rs.8,22,726/- was added to the income. CIT (A)'s Decision: The CIT (A) upheld the Assessing Officer's decision, noting that the amounts received in the course of trading transactions, even if not taxable in the year of receipt, change their character when they become the assessee's own money due to limitation or other statutory or contractual rights. The CIT (A) emphasized that the loan from Om Traders, which was dissolved in 2006, had become the assessee's own money over time and was thus taxable under Section 41(1). Assessee's Argument: The assessee contended that the accounts were not squared up and the bank account continued. The outstanding debtors and creditors were to be settled, and the bank account was to be continued till then. The assessee argued that the provisions of Section 41(1) and the decision in CIT vs. T.V. Sundaram Iyenger & Sons Ltd. were not applicable. The assessee also cited decisions from the Gujarat High Court in CIT vs. Miraa Processors (P) Ltd. and CIT vs. Nitin S. Garg, asserting that the addition should be deleted. Tribunal's Analysis: The Tribunal noted that the loan was obtained from Om Traders, a sister concern, and no interest was paid during the year. The firm was dissolved on 31-3-2006, and there was no record of any demand for repayment or interest. The bank statement of Om Traders showed no transactions, and there was no evidence of settled assets or liabilities. The Tribunal distinguished the cited cases as they did not involve a dissolved firm. The Tribunal referred to various judgments, including CIT vs. Agarpara Co. Ltd., CIT vs. Chipsoft Technology (P) Ltd., and CIT vs. T.V. Sundaram Iyenger & Sons Ltd., which supported the view that the amounts unclaimed over time become the assessee's own money and are taxable. Conclusion: Considering the dissolution of Om Traders, the lack of interest payment, no demand for repayment, and the absence of evidence of settled liabilities, the Tribunal upheld the addition under Section 41(1). The appeal of the assessee was dismissed. Order Pronounced: The appeal was dismissed, and the order was pronounced in open court on 5.4.2013.
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