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TMI Blog2012 (5) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of CIT v. Kalpataru Colours and Chemicals (2010 - TMI - 76895 - BOMBAY HIGH COURT) that DEPB credit is liable to be taxed in the year of issue of credit or in the year of sale of credit - In schedule 9 to the balance-sheet ended with March 31, 2007 the export benefit (DEPB) realisation is shown as Rs. 27,83,209.74 under the head "Other income". It is amply clear that the assessee has not sold DEPB credit during the relevant year. Therefore, the assessee is justified in excluding the same – against revenue. - I. T. A. No. 111/Kol/2011, - - - Dated:- 25-11-2011 - N. Vijaya Kumaran, C. D. Rao, JJ. S. K. Roy for the Appellant D. S. Damle and Miraj D. Shah for the Respondent ORDER N. Vijaya Kumaran, Judicial M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 187 as value added tax received relatable to the financial year 2006-07 relevant to the assessment year under appeal before us. The Assessing Officer after calling for the explanation found that this was assessable under section 41(1) of the Act as income of the assessee and there is no liability for payment of value added tax. He, therefore, treated it as income of the assessee for the assessment year under appeal under section 41(1) of the Income-tax Act. On appeal to the learned Commissioner of Income-tax (Appeals), the learned Commissioner of Income-tax (Appeals) found that the assessee did not receive the value added tax refund as it is a disputed sum subject to the decision of the West Bengal Value Added Tax Rules, 2005 and as per sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We have heard the rival submissions and perused the material available on record including the precedents. As per section 41(1) where an allowance to grant an assessee in any year in respect of any loss, expenditure or trading liability and subsequently during any previous year, the assessee receives, whether in cash or any other manner whatsoever, any amount in respect of such loss or expenditure or the assessee is benefited by the remission or cessation of the trading liability, the amount received or the amount of the liability which is extinguished, is chargeable as business profit of the previous year. The Assessing Officer was of the view that it is a benefit accrued to the assessee, and therefore, it is chargeable under section 41( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o adjudicate the claim. After claim of refund has been claimed by the assessee in the prescribed form, the Commercial Tax Department has to accept or reject the claim and that being the factual position. It is not a benefit accrued to the assessee during the year as the claim was not adjudicated by the commercial tax authority. Hence, we agree with the findings of the learned Commissioner of Income-tax (Appeals). Therefore, ground No. 1 of the Department is dismissed. The second issue is of reduction from the total income with regard to DEPB credit deduction made by the learned Commissioner of Income-tax (Appeals). We have heard the rival submissions on this issue. The decision of the hon'ble Bombay High Court in the case of CIT v. Kalp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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