2017 (2) TMI 554 - HC - Income Tax

Addition u/s 41 - amount shown as advance against export outstanding since 1997 - Held that - As in Jayram Holidngs Pvt. Ltd. (2012 (7) TMI 1011 - ITAT MUMBAI) wherein in almost identical fact situation advance received for exports was also shown in the accounts as a liability for a period of more than 10 years the Tribunal took a view that there can be no addition of the amount shown as a liability either under Section 41(1) and/or under Section 28(iv) of the Act. This is so as long as the liability exists. Section 41(1) of the Act cannot be applied so long as the liability is acknowledged. - Decided against revenue.

Summary

Issues:
Challenge to order under Section 260A of the Income Tax Act, 1961 for Assessment Year 2007-08 regarding deletion of addition made against 'advance against export' outstanding since 1997.

Analysis:
1. The Revenue questioned the Tribunal's decision to delete the addition made against an amount shown as 'advance against export' outstanding since 1997, received from a specific entity. The Tribunal's order was challenged under Section 260A of the Income Tax Act, 1961 for Assessment Year 2007-08.

2. During assessment, the Assessing Officer found an amount of ?3.04 crores under 'current liabilities' as advance against exports, received in 1997 but not repaid. The Assessing Officer added this amount as cessation of liability under Section 41(1) of the Act.

3. The Commissioner of Income Tax (Appeals) upheld the Assessing Officer's decision, leading the respondent to appeal to the Tribunal. The respondent mentioned seeking permission from the Reserve Bank of India to return the advance amount.

4. The Tribunal, citing precedent cases, held that showing an amount as advance in the balance sheet acknowledges liability, which persists until repaid. The Tribunal referred to a similar case where an advance for exports remained a liability for over 10 years without addition under Section 41(1) or Section 28(iv) of the Act.

5. The Revenue contended that the transaction was not genuine due to the relationship between the entities involved. However, subsequent to the Tribunal's order, the respondent received permission from the Reserve Bank of India to remit the advance amount to the creditor.

6. The Tribunal's decision was supported by a previous case involving a similar situation, emphasizing that Section 41(1) cannot be applied as long as the liability is acknowledged. The Revenue did not appeal the decision in the previous case, indicating acceptance of the Tribunal's ruling.

7. With the advance amount repatriated following RBI approval, it was no longer shown as a liability in the financial accounts for the subsequent assessment year. The Tribunal's decision aligned with previous rulings and lacked distinguishing features warranting a different outcome.

8. Consequently, the Court dismissed the appeal, citing no substantial question of law arising as the Tribunal's decision was consistent with precedent and no new facts or legal aspects were presented to justify interference.