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TMI Blog2017 (7) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ned written test. Refund claimed thereof will not be granted. In view of the clear finding of fact, the parties would be governed by the contract. Considering the facts of the case of the Petitioner, the observations of the Apex Court in case of Commissioner of Income Tax vs. T.V. Sundaram Iyengar and Sons Ltd (1997 (11) TMI 50 - MADRAS High Court) would be relevant. In case of Commissioner of Income Tax vs. Sugauli Sugar Works (P.) Ltd.(1999 (2) TMI 5 - SUPREME Court) before the Apex Court, the facts were different. If the Petitioner would have proved the second circular, then the Assessee would have been on a better footing. - Decided against the Assessee. - Income Tax Reference No. 158 of 2000 - - - Dated:- 1-7-2017 - S. V. Ganga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count in the Balancesheet. The said amount was assessed as income under section 41 of the Income Tax Act, 1961, in the Assessment Order. The Commissioner (Appeals) allowed the refund granted by the Assessee beyond the period of two months and the balance amount was held to be taxed in the year concerned. The Applicant further preferred an appeal before the Tribunal, the Tribunal in its order also directed the Assessing Officer to allow further deduction as detailed in the said judgment. 4] The learned counsel submits that the guarantee liability amount unclaimed by the students could not have been added to the income of the Assessee as the amount was still refundable to the students and the conduct of the Applicant would show that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective parties. 8] The matter will have to be decided considering the facts of the present case. No straight jacket formula had been laid down in this regard. In case of Commissioner of Income Tax vs. T.V. Sundaram Iyengar and Sons Ltd (supra), the Apex Court has observed that the principle appears to be that if an amount is received in course of trading transaction, even though it is not taxable in the year of receipt as being of revenue character, the amount changes its character when the amount becomes the assessee's own money because of limitation or by any other statutory or contractual right. When such a thing happens, common sense demands that the amount should be treated as income of the assessee. What remains after adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst circular states that if the refund is to be claimed by the student, the sum should be claimed within two months. After lapse of two months, the claim, shall not be entertained. The subsequent circular did not find favour with the Tribunal as it did not inspire confidence. 11] The Tribunal held that the contention on behalf of the Assessee that the terms and conditions for grant of refund had been relaxed is not acceptable. Paragraph 13 of the order of Tribunal reads as under; 13.The contention on behalf of the assessee that the terms and conditions for grant of refund had been relaxed for giving the student a chance to appear 5 to 8 attempts at the examination, has not been established by any evidence. A circular purported to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of will not be granted. In view of the clear finding of fact, the parties would be governed by the contract. Considering the facts of the case of the Petitioner, the observations of the Apex Court in case of Commissioner of Income Tax vs. T.V. Sundaram Iyengar and Sons Ltd (supra) would be relevant. In case of Commissioner of Income Tax vs. Sugauli Sugar Works (P.) Ltd.(Supra) before the Apex Court, the facts were different. If the Petitioner would have proved the second circular, then the Assessee would have been on a better footing. 13] Moreover as far as subsequent refunds are concerned, the Tribunal has taken care of the same and has directed the Assessing Officer to adjust against the demand under appeal. 14] In the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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