9911796707
TMI Blog2018 (2) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... URT] - Decided in favour of assessee - D. B. Income Tax Appeal No. 5 / 2018 - - - Dated:- 16-1-2018 - K. S. Jhaveri And Vijay Kumar Vyas, JJ. For the Appellant : Mr. K.D. Mathur for Mr. R.B. Mathur For the Respondent : Mr. Sanjay Jhanwar JUDGMENT By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the department confirming the order of CIT(A). Counsel for the appellant has framed the following substantial questions of law:- i) Whether in the facts and circumstances of the case, the Tribunal was justified in deleting the additions of ₹ 39195608/- made by the Assessing Officer on account of remission of Principal amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsultancy Services Ltd. reported in (2010) 325 ITR 87 (Delhi) wherein it has been observed as under:- 7. We do not find any merit in this preliminary submission of the learned Counsel for the assessee. The assessing officer had made the addition in terms of Section 41(1) of the Act read with Section 28(i) of the Act, which was upheld by the Commissioner (Appeals). No doubt, the Tribunal has held that Section 41(1) does not apply to which legal position is constituted (sicconceded) by the learned Counsel for the revenue before us, the revenue still wants that the addition be sustained under provisions of Clause (iv) of Section 28 of the Act. The revenue is not disputing the facts on the basis of which decision of the Tribunal is base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not is mentioned in Clause (iv). Bombay High Court has interpreted this very Clause in the case of Mahindra Mahindra Ltd. v. CIT MANU/MH/0199/2003:(2003) 261 ITR 501 (Bom) in the following manner: The-income which can be taxed under Section 28(iv) must not only be referable to a benefit or perquisite, but it must be arising from business. Secondly, Section 28(iv) does not apply to benefits in cash or money see CIT v. Alchemic (P) Ltd. MANU/GJ/0053/1980 : (1981) 130 ITR 168 (Guj). 4.1 The same view taken by the Madras High Court in The Commissioner of Income Tax vs. M/s Innvol Medical India Ltd. (2013) 219 Taxman 123 (Mad); Iskraemeco Regent Limited (Originally Seahorse Industries Ltd. and subsequently in Iskraemeco Seahorse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation whether there is a possibility of the refund being set at naught on a future date will not be a relevant consideration. Once the assessee gets back the amount which was claimed and allowed as business expenditure during the earlier year, the deeming provision in Section 41(1) of the Act comes into play and it is not necessary that the Revenue should await the verdict of higher Court or Tribunal. If the Court or Tribunal upholds the levy at a later date, the assessee will not be without remedy to get back the relief. 5.1 He also relied upon the decision of Supreme Court in CIT vs. T.V. Sundaram Iyengar and Sons Ltd. (1996) 222 ITR 344 wherein it has been held as under:- The principle appears to be that if an amount is rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties. 7. In view of the above, even otherwise the loan which was taken was capital investment and always treated in the capital account as liability and if it is so, it will naturally go as wiping out the capital liability. 8. In that view of the matter, the contention taken by the appellant is required to be accepted. The view taken by the CIT(A) is required to be restored and that of the tribunal is required to be reversed. 9. In view of the above, the issue is answered in favour of the assessee and against the department. 4. In that view of the matter, issues in both the appeals are answered in favour of the assessee and against the department. In view of the above, issue no. 1 to 3 are answered in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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