2009 (12) TMI 364 - HC - Income Tax

Business Income- The assessee was an investment company. During the previous year, the assessee had reflected a loan payable to J. J wrote off a part in its books of accounts. In the light of this, the Assessing Officer treated the sum written off by J as income of the assessee and added it under section 41 of the Act. Commissioner (Appeals) confirmed it. Tribunal deleted the addition. Held that- the Tribunal has held that the waiver/written off part of principal amount of loan by JSPL does not constitute income at the hands of the assessee. On the facts of this case and particularly having regard to the nature of business only, it will constitute capital receipt. Thus answer the question in favour of the assessee and against the Revenue. As a consequence, we dismiss this appeal.

Summary

Issues:
1. Treatment of a written-off loan by a creditor as income of the assessee under section 41(1) of the Income-tax Act, 1961.
2. Applicability of section 28(iv) of the Act to consider the written-off loan as income of the assessee.

Analysis:
1. The judgment dealt with the treatment of a written-off loan by a creditor as income of the assessee under section 41(1) of the Income-tax Act, 1961. The Assessing Officer treated the written-off amount as income, considering it no longer a liability of the assessee. The Commissioner of Income-tax (Appeals) upheld this addition under section 41(1) read with section 28(i) of the Act. However, the Income-tax Appellate Tribunal reversed this decision, stating that since the loan was neither claimed nor allowed as a deduction by the assessee, section 41(1) did not apply. The Tribunal referenced previous court judgments to support its decision, leading to the Revenue appealing the matter.

2. The Revenue amended the appeal to question whether the written-off loan by the creditor should be considered income of the assessee under section 28 of the Income-tax Act, 1961. The court noted that the Revenue conceded that section 41 did not apply to the case. The court then discussed the preliminary submission that the Revenue could not introduce a new ground in the appeal. The court analyzed the applicability of section 28(i) and section 28(iv) of the Act, emphasizing that these clauses were independent and mutually exclusive. The court concluded that the Revenue's attempt to sustain the addition under section 28(iv) was a pure question of law and allowed the amended ground.

3. The court proceeded to examine whether the written-off amount by the creditor could be considered a benefit or perquisite under section 28(iv) of the Act. The court highlighted the prerequisites for this provision, emphasizing that the benefit or perquisite must arise in the course of business and not be in the form of cash or money. The court referenced a previous interpretation by the Bombay High Court to support its analysis. Ultimately, the court held that the written-off amount did not constitute income at the hands of the assessee and was considered a capital receipt based on the nature of the business. Consequently, the court ruled in favor of the assessee and dismissed the appeal.