9911796707
TMI Blog2017 (3) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 267 - BOMBAY HIGH COURT] - Decided in favour of assessee. - ITA No. 404/PUN/2015 - - - Dated:- 1-2-2017 - SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri Nikhil Pathak For The Revenue : Shri Naresh Kumar ORDER PER VIKAS AWASTHY, JM : This appeal by the assessee is directed against the assessment order dated 30-01-2015 passed u/s. 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) for the assessment year 2010-11. The only issue raised by the assessee in appeal is against the addition of ₹ 1,66,76,021/- on account of profit on pre-payment of deferred sales tax loan liability which was claimed by the assessee as capital receipt. The As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the total sales tax liability and the net present value paid was ₹ 1,66,76,021/- which was claimed by assessee as capital receipt not chargeable to tax. The ld. AR submitted that the issue in hand is squarely covered by the decision of Special Bench of the Tribunal in the case of Sulzer India Ltd. Vs. Joint CIT reported as 6 ITR (Trib) 604 (Mumbai)(SB) which has been upheld by the Hon ble Bombay High Court in the case of Commissioner of Income Tax Vs. Sulzer India Ltd. reported as 369 ITR 717 (Bom). The ld. AR further submitted that the Pune Bench of the Tribunal in the case of Asstt. Commissioner of Income Tax Vs. Poona Shims Pvt. Ltd. in ITA No. 1722/PN/2012 for the assessment year 2004-05 decided on 16-09-2013 by following the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37,13,393/- against the total liability of ₹ 7,52,01,378/-. The Assessing Officer made addition of ₹ 4,14,87,985/- being remission of loan liability for premature payment of the amount at net present value by invoking section 41(1) of the Act. The Commissioner of Income Tax (Appeals) upheld the same. The matter travelled to the Tribunal. The question before Special Bench was : Whether, on the facts and in the circumstances of the case and in law, the sum of ₹ 4,14,87,985 being the difference between the payment of the net present value of ₹ 3,37,13,393 against the future liability of ₹ 7,52,01,378 has rightly been charged to tax under section 41(1) of the Income-tax Act, 1961 ? The Special Bench held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the question in favour of the assessee. The relevant extract of the judgment of Hon ble High Court reads as under : 40. It is not possible to agree with Mr. Gupta. Because the premature payment of sales tax already collected but its remittance to the Government, as Mr. Gupta envisages, is not covered by this provision else the sub-sections and particularly section 43B(1) would have been worded accordingly. Therefore, section 43B has no application. In so far as the applicability of section 41(1)(a), there also the applicability is to be considered in the light of the liability. It is a loss, expenditure or trading liability. In this case, the scheme under which the sales tax liability was deferred enables the assessee to remit the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee having paid ₹ 3.37 crores has obtained for himself anything in terms of section 41(1) but the assessee is deemed to have received the sum of ₹ 4.14 crores, which is the difference between the original amount to be remitted with the payment made. Mr. Gupta terms this as deemed payment and by the State to the assessee. We are unable to agree with him. The Tribunal has found that the first requirement of section 41(1) is that the allowance or deduction is made in respect of the loss, expenditure or a trading liability incurred by the assessee and the other requirement is the assessee has subsequently obtained any amount in respect of such loss and expenditure or obtained a benefit in respect of such trading liability by way ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
