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TMI Blog2013 (2) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Appellate Commissioner? (II) Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in deleting the addition of Rs.2,14,195/- under Section 41(1) of the Income Tax Act made by the Assessing Officer and confirmed by the Appellate Commissioner ? (III) Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal has committed an error in reversing the order of the Commissioner of Income Tax (Appeals)-II, Surat, without assigning any cogent and relevant reasons? (IV) Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in shifting onus of burden of proof from the assessee to the revenue regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt, there is no justification in overlooking upon those speaking facts on the technical ground that the assessee has claimed the DEPB benefit on the gross amount of the invoice. The DEPB claim was made by the assessee on the basis of permission granted by the RBI and that has nothing to do with the actual amount of export sales proceeds received by the assessee in the form of convertible foreign exchange. 15. Therefore, it is quite obvious without much discussion and deliberation that the revenue has no case to hold the assessee responsible for an additional income of Rs.58,08,755/-. The said addition is accordingly deleted. Our above view also finds support from the decision of this Tribunal in the case of Shri Sanjay Jain v. DCIT in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved some benefits with respect to said amount during the year under consideration. In absence of any such material, the Tribunal did not approve the Assessing Officer invoking Section 41(1) of the Act. 6. In somewhat similar situation, in Tax Appeal No.2344 of 2010 considering such a situation, we had dismissed revenue's appeal making following observations: "7. Counsel for the revenue vehemently contended that the Tribunal committed an error in not appreciating the ratio of the Apex Court in case of T.V. Sundaram Iyengar & Sons Ltd. (supra). She further relied on the decision of the Bombay High Court in case of Hindustan Food Ltd. v. Dy. Commissioner of Income Tax, (2010) 328 ITR 392 (Bom.). She submitted that the period of limitation fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chemicals Ltd v. CIT (1966) 62 ITR 34 wherein it was observed as under : "The transfer of any entry is a unilateral act of the assessee, who is a debtor to its employees. We fail to see how a debtor by his own unilateral act, can bring about the cessation or remission of his liability. Remission has to be granted by the creditor. It is not in dispute, and it indeed cannot be disputed, that it is not a case of remission of liability. Similarly, a unilateral act on the part of the debtor cannot bring about a cessation of his liability. The cessation of the liability may occur either by reason of the operation of law, i.e. on the liability becoming unenforceable at law by the creditor and the debtor declaring unequivocally his intention no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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