1982 (4) TMI 132

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..... assessee of processed fish products. It would appear that the assessee has not been able to liquidate this liability by making good the supplies of the material and on 1st March, 1976 the Indian Tobacco Co. entered into an agreement with the assessee by which the assessee placed at the disposal of the Indian Tobacco Co., the canning plant and accessories that belonged to the assessee and which was used for the purpose of processing the fish products. Under the agreement, the assessee was to give possession of this plant to Indian Tobacco Co. and the company would remain in possession of the property for a period of 5 years from the date of agreement with an option to renew such possession for a further period of two years. In consideration .....

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..... ee. It is further pointed out that a similar waiver, also by the Indian Tobacco Co., has been assessed in the hands of another assessee in the reported case in CIT vs. Mysore Tobacco Co. Ltd. (1979) 10 CTR(Kar) 51: (1979) 119 ITR 87 (Kar). 3. On behalf of the assessee it is submitted that this is a new ground that has been taken by the revenue; that the revenue has all along been contending that this sum is assessable under s.41(1); that it has now argued that it becomes includible in the total income by virtue of s. 28(iv). It is submitted that the revenue may not be permitted to take up this ground. it is further contended that there cannot be a question of any benefit or perquisite arising to the assessee under this agreement. The par .....

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..... relinquishment of the amount of Rs. 10,17,371. in the absence of any evidence produced by the revenue to show that the consideration, namely, the utilisation of the plant by the Indian Tobacco Co., is not adequate for the waiver of this liability of Rs. 10,17,371, we have to uphold the claim of the assessee before us that no benefit can be said to have arisen to the assessee under the agreement. We also are of the opinion that the attempt on the part of the revenue to raise this question at this late stage, namely the question regarding the applicability of s. 28(iv), cannot be permitted as it really involves going into further evidentiary material to determine whether the consideration for the relinquishment of this sum of Rs. 10,17,371, .....

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