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TMI Blog1975 (11) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... -70. But he reopened the assessments and treated them as taxable receipts. For the asst. yrs. 1972-73 and 1973-74 he assessed them in the original assessment proceedings itself. The assessee's contention is that these collections did not form part of the turnover and they were specially collection from the parties concerned for payment of charity and therefore it should not be assessed. 2. The AAC accepted the assessee's contention for the asst. yrs. 1968-69, 1969-70 and 1973-74. According to him, according to the traditional customs which are prevalent, collection of small amounts for charitable purposes was not part of the receipts of the assessee. In the asst. yr. 1972-73 although this point was raised in the grounds the AAC failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y facts and arrive at a decision whether it is taxable or not. 5. In the assessee's appeal a further point regarding taxability of certain amount under s. 41(1) is involved. In the cigarette Department of the assessee there was a credit in the P L account to the extent of Rs. 51,400. This represented refund of licence fee received from the Excise Department during this year. In the adjustment statement filed with the return the assessee has included Rs. 27,838 out of this amount for the purpose of taxation, on the ground that it will be assessable under s. 41(1). In respect of the balance amount the assessee's claim was that it was not allowed as a deduction in the earlier years and therefore it cannot be taxed. The ITO wanted evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copy of which had been furnished before us, the assessee had discharged the onus to him to prove the charter of the receipt of Rs. 51,400. It is clearly refund of certain expenses shown earlier. As such unless the provisions of s. 41(1) are made applicable it cannot be taxed. The assessee has also agreed that a part of this i.e., Rs. 27,838 did really represent the refund of licence fees debited in the accounts for the earlier years and allowed in the income-tax assessments. There is no dispute that this amount was taxable. The dispute is regarding the balance amount. Now the assessee's contention is that the balance amount has not been debited in the P L account and it has not been allowed as a deduction. The ITO's contention is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence could be draw. But evidence had been produced that the books were destroyed and is not possible for them to produce those books. Added with this we are asking in 1973 the books of accounts of early fifties i.e., more than 20 years old books. If the assessee expresses inability to produce such old books it cannot be treated as a matter of adverse inference. We, therefore, will conclude that the onus being on the Department to show that these amounts were claimed as deduction in the earlier years the onus had not been discharged and therefore the balance cannot be brought to tax under s. 41(1). The addition will be deleted. 10. In the result, the Departmental appeals as well as the assessee's appeal are partly allowed. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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