9911796707
TMI Blog2022 (11) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, the same is directed to be deleted. - ITA.No.309/Nag./2017 - - - Dated:- 23-11-2022 - Shri Satbeer Singh Godara, Judicial Member And Dr. Dipak P. Ripote, Accountant Member For the Revenue : Shri KailashKanojia, DR For the Assessee : Shri Rajesh Loya, C.A. ORDER PER SATBEER SINGH GODARA, J.M. This Revenue s appeal for A.Y. 2009-10, arises against the CIT(A)-2, Nagpur s order dated 31.05.2017, passed in case No.CIT(A)-2/41/2015-16, in proceedings under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 [ In short Act ]. 2. Heard both the parties. Case file perused. 3. The Revenue raises the following substantive grounds in the instant appeal : 1. On the facts and in the circumstances of the case and in law the Ld. CIT(Appeals) has erred in holding that the reopening of the assessment within the meaning of section 147 of the Act is not within the ambit of law. 2. On the facts and in the circumstances of the case and in law the Ld.CIT(Appeals) has erred in so holding ignoring the fact that the notice u/s 148 was issued within 4 years of the end of the assessment year and therefore the first proviso to section 147 does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a clear cut live nexus to be proved at the Revenue s behest between the expenditure or liabilities claimed in the past, which in-turn, form subject matter of any remission or cessation in subsequent assessment years in other words. The Assessing Officer s reopening reasons [intimated on 03.06.2014] hardly throw any light qua this clinching aspect. We notice in this factual backdrop that the CIT(A) s detailed discussion rejects such existence of such a nexus outrightly in his detailed discussion as follows : 7.5. The appellant has contended that the provisions of section 41(1) is applicable on remission of only those trading liabilities for which an allowance/ deduction respect of loss, expenditure has been allowed to the assessee in any assessment year and subsequent thereto during any previous year, if the assessee obtains any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof, and the same is deemed to be the profits and gains of business and profession chargeable to tax in that previous year. Thus the sine qua non of invoking section 41(1) is that in any earlier assessment year, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he waiver of loan is a 'Capital receipt', not chargeable to tax. The appellant has submitted that the company had obtained the loan from the banks and the financial institutions in the earlier years which could not be repaid because of heavy losses suffered by the company. Therefore, according to the appellant, the loan amount has become NPA in the year 1998 and thereafter the company was declared as sick industrial company and matter was referred to BIFR. The appellant has contended that the loan obtained from the banks and the financial institutions was utilized for acquisition of capital assets. The appellant in this regard has drawn the attention to the balance sheet of the earlier period of the company explaining the purpose and utilization of the loan obtained from the banks and the financial institutions. The AR has explained to the AO that the company has under taken the expansion cum modernization programme in the year 1995-96 with the capital investment planning of more than Rs.16 crores out of which approximately Rs.10 crores were sourced through term loan from the banks and the financial institutions. The appellant has submitted that the term loan from IDBI was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at Rs.12.03 cr. Out of which settlement was reached in respect of Rs.9 cr. And the balance of Rs.3.03 cr. Is the waiver of principal amount of loan from SBI. All these details of purpose of loan from the banks and the financial institutions were filed before the AO during the original scrutiny assessment as well as during the re-assessment proceedings. The Id. AO has accepted the use and purpose of utilization of loan towards capital expenditure and the same is not disputed by the AO. The appellant has filed a copy of submission filed before the AO during the re-assessment proceedings along with the audited financial statements which are annexed at page No.6 to 15 of the paper book filed by the appellant. The appellant had thus demonstrated that the Id. AO had verified the submission of the assessee and there is no dispute about the purpose for which the loan was obtained and its utilization for acquisition of capital asset. In this regard the appellant has relied on the decision of Hon'ble ITAT, Mumbai Bench in ITA No.1986 3012/Mum/2012-13 dated 20.04.2016 in the case of Trigyn Technologies Ltd. vs. ACIT wherein the Hon'ble Tribunal found that the Loan was sanctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
