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2019 (10) TMI 392 - AT - Income TaxAllowable revenue expenditure - customs duty paid towards Countervailing Duty (CVD) subsequently claimed by the assessee refund from the Customs Department but the said claim was declined even upto the stage of first appellate authority - HELD THAT - At the time of passing the assessment order dated 27.12.2008 it was rather certain that the claim of refund made by the assessee was denied by the Customs Authorities including the first appellate authority and consequently it cannot be said that income has accrued or arise to the assessee during the year under consideration or till the assessment order was passed. The entries and treatment in the books of account is not a conclusive basis for holding the income arises and liable to tax. AO is under duty and obligation to assess the actual and correct income as per provisions of the Act while acting as a quasi judicial authority and not to take advantage of any mistake or the entries made in the books of account. CIT (A) has confirmed the addition by citing the provisions of section 41(1) which in our view not applicable in this case as discussed in earlier part of this order. Accordingly, we hold that the addition made by the AO on account of claim of refund of Countervailing Duty without appreciating the fact that the said claim was already rejected and the chances of refund are very bleak is not justified, therefore, the addition made by the AO and confirmed by the ld. CIT (A) is deleted. - Decided in favour of assessee.
Issues Involved:
1. Addition of ?48,61,31,816/- to the total income due to a disputed refund claim of customs duty. 2. Applicability of Section 41(1) and Section 28 of the Income Tax Act regarding the treatment of the refund claim. 3. Determination of whether the refund claim constitutes accrued income. Issue-wise Detailed Analysis: 1. Addition of ?48,61,31,816/- to the Total Income: The primary issue in this appeal is the addition of ?48,61,31,816/- to the total income of the assessee, which represents a disputed refund claim of customs duty paid towards Countervailing Duty (CVD). The assessee had claimed a refund from the Customs Department based on a Supreme Court judgment but the claim was declined by the Customs authorities. The assessee argued that the amount should not be taxed until the refund is actually received. 2. Applicability of Section 41(1) and Section 28: The Assessing Officer (AO) disallowed the claim and added the amount to the income of the assessee, citing Section 41(1) of the Income Tax Act. The AO argued that the benefit accrued to the assessee and should be deemed as profits and gains of business or profession, thus chargeable to income tax. However, the Tribunal observed that Section 41(1) applies only when a liability ceases to exist, which was not the case here as the liability was already discharged by payment. The Tribunal held that if the refund is eventually granted, it would be considered as income under Section 28 in the year of receipt, not under Section 41(1). 3. Determination of Accrued Income: The Tribunal emphasized that income can only be taxed when it is real and not hypothetical. The Tribunal referred to several Supreme Court judgments, including CIT vs. Excel Industries Ltd., which established that income accrues only when there is a corresponding liability of the other party to pay. Since the Customs Department had rejected the refund claim, the amount could not be considered as accrued income. The Tribunal concluded that the mere claim of refund does not vest any right in the assessee to receive the amount until the refund is granted, and thus it cannot be treated as income accrued or arisen to the assessee. Conclusion: The Tribunal held that the addition made by the AO on account of the refund claim was not justified, as the claim was rejected by the Customs Department and the first appellate authority. The Tribunal deleted the addition, stating that the income cannot be taxed on a hypothetical basis and must be real and accrued. The appeal of the assessee was allowed, and the order was pronounced on 03/10/2019.
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