9911796707
TMI Blog2004 (11) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... e same having been written off in the earlier previous years by the assessee in her accounts, a case for deduction under section 36(2)(i) ibid, is made out. - - - - - Dated:- 24-11-2004 - Judge(s) : A. M. SAPRE., ASHOK KUMAR TIWARI. JUDGMENT The judgment of the court was delivered by A.M. Sapre J.- This is an appeal filed by an assessee under section 260A of the Income-tax Act, 1961 against an order dated February 18, 1999 (annexure B), passed by the Tribunal (the ITAI) in I.T.A. No. 589/IND/95. At the outset, it may be mentioned that this appeal was dismissed by this court on October 16, 2000, by passing the following order: "16-10-2000 Shri M.S. Choudhary, learned counsel for the appellant. Shri R.L. Jain, learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Act?' We are afraid we cannot accede to the contention of learned Solicitor General that the issue is covered by the judgment of this court in A.V. Thomas Co. Ltd. v. CIT [1963] 48 ITR (SC) 67, relied upon by the Tribunal. In that case, the question related to a deduction under section 10(2)(xv) of the Indian Income-tax Act, 1922. The appellant herein claims deduction under section 36(2)(i) of the Income-tax Act, 1961, which is entirely a different provision. We, therefore, set aside the order under challenge and restore the appeal (I.T.A. No. 72 of 1999) to the file of the High Court. The High Court shall now, dispose of the appeal after deciding the aforementioned question of law, on merits in accordance with law: Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion of the Commissioner of Income-tax (Appeals), the assessee was entitled to claim deduction treating the amount to be a bad debt. The Revenue then carried the matter in appeal to the Tribunal having felt aggrieved by the order of the Commissioner of Income-tax (Appeals). The Tribunal by an impugned order (annexure E) allowed the appeal and set aside the order of the Commissioner of Income-tax (Appeals). In the opinion of the Tribunal, the amount in question was not a debt and hence no deduction was permissible. Accordingly, the Tribunal restored the order of the Assessing Officer. As observed supra, this court having upheld the order of the Tribunal, the same was set aside by the Supreme Court resulting in remand to this court for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken into account in computing the income of the assessee of the previous year in which the amount of such debt or part thereof is written off or of an earlier previous year, or represents money lent in the ordinary course of the business of banking or money-lending which is carried on by the assessee;". A perusal of the aforesaid sub-section indicates that in order to enable any assessee to claim deduction of an amount which he/she claims to be a bad debt it is necessary for her/him to show that such debt or its part thereof is taken into account in computing the income of the assessee of the previous year and it is written off. In other words, what is required to be seen is whether the assessee has declared the debt to be a written of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal while deciding the issue in favour of the Revenue had recorded their finding only on the basis of the view taken in A.V. Thomas Co. Ltd. v. CIT [1963] 48 ITR (SC) 67. In other words, the Tribunal ought not to have placed reliance on the law laid down in the case of A.V. Thomas Co. Ltd. v. CIT [1963] 48 ITR (SC) 67 because it has no application to the facts of this case. Since their Lordships have already dealt with this issue against the Revenue, we are bound by the finding of the Supreme Court in so far as this submission of the Revenue is concerned. Once we hold that the conditions required for claiming deduction as provided in section 36(2)(i) ibid, are satisfied then, it necessarily follows that the assessee is entitled to cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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