2020 (3) TMI 791 - HC - Income Tax

Characterization of income - cash receipt due to waiver of loan by the state government - whether in the nature of subsidy - to be treated as benefit/ perquisite u/s 28(iv) or not - Income chargeable to income tax under the head profits and gains of business and profession - value of any benefit or perquisite has to arise from business or the exercise of a profession and it should not be in cash - provisions of Section 28(iv) of the Act as attracted where alleged benefit or perquisite is other than cash - HELD THAT - From a careful analysis, it is evident that there is a fundamental difference between loan and subsidy and the two concepts cannot be equated. While loan is a borrowing of money required to the repaid back with interest; subsidy is not required to be repaid back being a grant. Such grant is given as part of a public policy by the state in furtherance of public interest. Therefore, even if a loan is written off or waived, which can be for various reasons, it cannot partake the character of a subsidy . From the discussions and reasons aforementioned, we find sufficient force in the contention of the appellant. The substantial question of law therefore is answered in favour of the assessee by holding that waiver of loan cannot be brought to tax under Section 28(iv) of the Act.

Issues Involved:
1. Applicability of Section 28(iv) of the Income Tax Act, 1961.
2. Treatment of waiver of loan as taxable income.
3. Distinction between loan and subsidy.

Detailed Analysis:

1. Applicability of Section 28(iv) of the Income Tax Act, 1961:
The primary issue in this case is whether the provisions of Section 28(iv) of the Income Tax Act, 1961, are applicable when the alleged benefit or perquisite is other than cash. The court examined the language of Section 28(iv), which states: "the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession." The court referenced the Supreme Court's decision in Mahindra & Mahindra Limited, which clarified that for Section 28(iv) to apply, the benefit must arise from business or profession and must not be in the form of money. The court concluded that the waiver of a loan, which results in a cash receipt, does not satisfy the conditions of Section 28(iv), as the benefit must be in a form other than money.

2. Treatment of Waiver of Loan as Taxable Income:
The appellant argued that the waiver of the loan by the Government of Karnataka should not be considered taxable income under Section 28(iv). The Assessing Officer had added the waived amount to the appellant's total income, treating it as a benefit arising from business. However, the first appellate authority and the Supreme Court in Mahindra & Mahindra Limited held that a cash item like a loan waiver could not be treated as a benefit or perquisite under Section 28(iv). The court reaffirmed this position, stating that the waiver of the loan amounting to ?2.52 crores was a cash receipt and could not be taxed under Section 28(iv).

3. Distinction Between Loan and Subsidy:
The respondent contended that the waived loan should be treated as an operational subsidy, thus taxable. The court rejected this argument, emphasizing the fundamental differences between a loan and a subsidy. A loan is a sum of money borrowed that must be repaid with interest, while a subsidy is a grant that does not require repayment and is given to support an undertaking in the public interest. The court cited definitions from the Concise Oxford English Dictionary and Black's Law Dictionary to underscore this distinction. The court concluded that even if a loan is waived, it does not transform into a subsidy and cannot be taxed as such.

Conclusion:
The court answered the substantial question of law in favor of the assessee, holding that the waiver of the loan could not be brought to tax under Section 28(iv) of the Income Tax Act. The appeal was allowed, and the order of the Tribunal was set aside, restoring the decision of the first appellate authority. The court emphasized that the waiver of a loan resulting in a cash receipt does not meet the criteria for taxation under Section 28(iv), as established by the Supreme Court in Mahindra & Mahindra Limited. The appeal was allowed with no order as to costs.

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