CIT vs. GCG TRANSGLOBAL HOUSING PROJECTS PVT LTD

IN THE HIGH COURT OF DELHI AT NEW DELHI . . . ITA 1300/2011 . . . CIT ..... Appellant . Through: Mr. N.P.Sahni, Adv. . versus . . . GCG TRANSGLOBAL HOUSING PROJECTS PVT LTD ..... Respondent . Through . CORAM: . HON'BLE MR. JUSTICE SANJIV KHANNA . HON'BLE MR. JUSTICE R.V.EASWAR . . . O R D E R . 02.01.2012 . . . We are not inclined to interfere with the order passed by the Income Tax Appellate Tribunal (tribunal for short) dated 31st March, 2011. The Tribunal has observed that the Explanation to Section 41(1) of the Income Tax Act, 1961 cannot be applied and invoked in the present case as the assessee had not written back amount of Rs.1,63,20,000/- in the books of accounts. In the audited accounts, a Note of accounts, which reads as under was attached:- . ?The company had entered into a collaboration agreement for sale of the flats to be built on L-1/7, Hauz Khas Enclave, New Delhi, but the applicant companies to whom letter of allotments were issued did not pay the agreed amount at the agreed time. Therefore, the amounts received from the applicants (part payments of earnest money) were forfeited. However, the parties from whom part payments towards earnest money were received have filed suits alleging that the amounts were given as loans to the company for purchase of land and claimed refund accordingly. The company has denied the same in replies to the Court. However, the matter being sub-judice, no financial entries have been passed for the amount mentioned below which stands forfeited. . The total amount received from the defaulting parties and forfeited stands to Rs.1,63,20,000/-.? . . . (emphasis supplied) . . . Reading of the said Note itself clarifies the factual position that there was no entry of forfeiture in the regular accounts books. The note reflects the stand of the respondent-assessee who was contesting the Civil Suits. The respective claims were sub-judice. Explanation to Section 41(1) of the Act is not attracted. Further, Section 41(1) will . apply only when some loss or expenditure is allowed earlier in respect of which the assessee obtains any benefit in a later year. This condition is not satisfied in this case. . We may note that the aforesaid amount of Rs.1,63,20,000/- was not added and treated as a trading receipt by the Assessing Officer. This position is not disputed. . In view of the aforesaid position, the present appeal is dismissed in limine. . SANJIV KHANNA, J . . . . . R.V.EASWAR, J . JANUARY 02, 2012/mm . . . $ 5 .