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Income Tax Appellate Tribunal, DELHI BENCH ‘C’, NEW DELHI
Before: SHRI G. D. AGRAWAL, HON’BLE & SMT. BEENA A. PILLAI
Date of hearing: 13.07.2016 Date of Pronouncement: 27.07.2016 ORDER
PER BEENA A. PILLAI, JM:
The present appeal has been filed by the assessee against the order dated 15.02.2013 passed by Ld. CIT(A) VIII, New Delhi, for the Assessment Year 2006-07 on the following grounds of appeal: “1. The Ld. CIT(A) erred in law and on facts in confirming the addition of Rs.2,81,138/- made U/S 41(1) for sundry creditors outstanding, even when the liability to pay the same is neither disputed nor written off in books by the appellant. Thus, said addition must be deleted.
2. The Ld. CIT(A) erred in law and on facts in confirming the addition of' Rs. 3.70 crores by holding
2 I.T.A.No.2041/Del/2013 the waiver of loan as revenue receipt instead of capital receipt even when- (a) the waived loan was neither a trading liability nor any expenditure had ever been claimed directly or indirectly against it; and (b) the impugned waived-off loan had arisen in the settlement of another loan and had not been taken for acquisition of any current asset. Thus, the addition so confirmed should be deleted.”
The brief facts of the case are that the assessee had filed its return of income declaring ‘nil’ income on 30.11.2006. The same was processed u/s 143(1) and the case of the assessee was selected for scrutiny. Notices u/s 143(2) were issued and the assessee, accordingly filed its submissions in respect of the questionnaire issued. 2.1 Assessee is a company engaged in the business of manufacturing, trading and job work of mens suits, jackets and trousers. During the course of assessment proceedings the Assessing Officer observed that an amount of Rs.3.70 crores was claimed as capitals receipt out of the loan outstanding in the name of Shri Panchai Singh Sachthep and deducted the same from total income. The assessee was again to explain as to why the same may not be treated as revenue receipt. The assessee in response submitted that It was observed that an amount of RS.3.70 crores was claimed as capital receipt out of the loan outstanding in the name of Sri Panchai Singh Sachthep and deducted the same from total income. Vide questionnaire dated 19.09.2008, the 3 I.T.A.No.2041/Del/2013 assessee was asked to explain as to why the same may not be treated as revenue receipt. In response, vide letter dated 14.10.2008, it was submitted that a sum of Rs.3.70 crores is a capital receipt as Mr. Panchal Singh Sachthep had provided funds which had been kept as fixed deposits with the bank against which the company was using overdraft facilities. 2.2 The assessee submitted before Ld. A.O. that these were adjusted against the outstanding loan by Indian Overseas Bank and no amount was available to repay Mr. Panchal Singh Sachthep and as part of the OTS. It was. decided that the shall surrender and forego the sum due to him in favour of the company. These funds have been with the assessee company since long and since no part of the amount was ever claimed as an expense in any of the preceding years income tax return. It has been submitted that the amount is a capital receipt and therefore the same is not taxable.
The Ld. A.O. rejected the submissions of the assessee and held as under: “The aforesaid submissions have duly been considered and found unacceptable, The aforesaid receipts of Rs.3.70 crores is liable to be taxed in the hands of assessee company being revenue receipts. As stated by the assessee itself that these funds had been with the assessee company for a long time and no amount was available with the assessee company to repay Mr. Panchal Singh Sachthep, therefore he decided to surrender and forego the sums due to him. It clearly establishes that this is a cessation of liability for the assessee company. This further shows that 4 I.T.A.No.2041/Del/2013 there is no contractual obligation left on the part of the assessee to repay this amount. Therefore, it is held that the liability has ceased to exist and this amount of Rs.3.70 crores is taxed as revenue receipts.”
3.1 The Assessing Officer further observed as under: “The assessable income is computed as under: Business loss as declared by the assessee. (-)22,17,77,552 Additions: Disallowance as per para 3 above. 28,45,070 Disallowance as per para 4 above. 5,73,791 Disallowance as per para 5 above. 2,81,138 Disallowance as per para 6 above3,70,00,000 4,06,99,999 Total Business Income (-)18,10,77,553 Income from Capital Gains as declared 45,29,17,204 Taxable Income 27,18,39,651 Less: brought forward losses 27,18,39,651 Taxable Income NIL Assessed at Rs. NIL under the normal provisions of the Act. However, income of the assessee is assessed u/s 115JB at Rs.32,52,184/-. Issue necessary forms. Give credit for prepaid taxes. Charge interest u/s 234B and 234D as applicable under Income tax Act, 1961. Initiate penalty proceedings u/s 271(1)(c) of the LT. Act, 1961.”
Aggrieved by the assessment order, the assessee preferred an appeal before Ld. CIT(A). It was submitted that Mr. Panchal Singh Sachthep has provided collateral security to the bank from whom the assessee had obtained overdraft facility. As the assessee did not have any funds to repay Mr. Panchal Singh Sachthep, he decided to surrender and forgo the money due in favour of assessee during the year under consideration. Ld. CIT(A) rejected the sub missions made by the assessee and upheld the addition made by the Assessing Officer.
Aggrieved by the order of Ld. CIT(A), the assessee is in appeal before us now.
5 I.T.A.No.2041/Del/2013
Ld. A.R. submitted that these amounts have never been taken into books of account. He submitted that Mr. Panchal Singh Sachthep stood as guarantor for the overdraft before Indian Overseas Bank. As the assessee could not repay the loan, the bank recovered the guarantee and adjusted the same against Rs.3.70 crores which was outstanding on account of loan against the assessee. 6.1 Ld. A.R. further submitted that Mr. Panchal Singh Sachthep was one of the promoters of the assessee company and he had advanced interest free funds to the assessee for the purpose of guarantee. 6.2 In respect of sundry creditors amounting to Rs.2,81,138/-, Ld. A.R. submitted that as the assessee was unable to make the payment due to financial difficulty, the creditors had approached the Court and the assessee company was referred to BIFR to settle the outstanding sundry creditors. Ld. A.R. thus submitted that thee liabilities had not seized in the books of account of the assessee. Therefore, it cannot be considered as cessation of liability u/s 14(1) of the Act.
On the contrary, Ld. D.R. submitted the written submissions which are reproduced here as under: “With respect to the Addition of Rs. 3.70 Crores by holding that the waiver of loan as Income, reliance is also placed on the following decisions:
(i) Definition of income is inclusive and all-embracing - The definition of "income" in section 2(24) is an 6 I.T.A.No.2041/Del/2013 inclusive definition. It adds several artificial categories to the concept of income but on that account the expression "income" does not lose its natural connotation. Anything which can properly be described as income is taxable under the Act unless of course it is exempted under one or the other provisions of the Act - Emil Webber v. CIT [1993] 200 ITR 483 (SC) 1 Kedar Narain Singh v. CIT[1938] 6 ITR 157 (All.)
(ii) Items not falling under specified categories can still be income - Even if a receipt does not fall within the ambit of any of the sub-clauses in section 2(24), it may still be income if it partakes of the nature of the income. The idea behind providing inclusive definition in section 2(24) is not to limit its meaning but to widen its net. The word "income" is of widest amplitude, and it must be given its natural and grammatical meaning - CIT v. G.R. Karthikeyan [1993] 68 Taxman 145/201 ITR 866(SC).
(iii)What one saves is also income - Even in its ordinary economic sense, the expression "income" includes not merely what is received or what comes in by exploiting the use of a property but also what one saves by using it oneself. That which can be converted into income can reasonably be regarded as giving rise to income - Bhagwan Dass Jain v. Union of India [1981] 128 ITR315 (SC).
(iv)Income may even be in kind - Income may be received in kind as well as in cash and the receipt of an equivalent of cash may be a receipt of income. The essence of the matter is that there must be an actually realized or realizable profit or loss. - Raja Raghunandan Prasad Sing v. CIT [1933] 1 ITR 113 (PC) 1 CIT v. Central India Industries Ltd. [1971] 82 ITR 555 (SC) 1 Seth Kishori Lal Babulal v. CIT[1963] 49 ITR 502 (All). F
7 I.T.A.No.2041/Del/2013 (v)It is well-settled that the way in which entries are made by the assessee in its books of account is not determinative of the question whether the assessee has earned any profit or suffered any loss - State Bank of India v. CIT (1986) 157 ITR 67 (SC).
(vi)The matter of taxability cannot be decided on the basis of the entries which the assessee may choose to make in his accounts but has to be decided in accordance with the provisions of law. CIT v. Mogul Line Ltd. [1962] 46 ITR 59 (Born.).
(vii)Having regard to be characteristics of mesne profit there can be no doubt that they are also a species of taxable income. CIT vs P. Mariappa Gounder (1984) 147 ITR 676 (Mad).
(viii)Assessee must prove the source of receipt - It is well established that the onus of proving the source of a sum of money found to have been received by the assessee is on him. If he disputes liability for tax, it is for him to show either that the receipt was not income or that if it was, it was exempt from taxation under the provisions of the Act. In the absence of such proof, the ITO is entitled to treat it as taxable income - Kale Khan Mohammad Hanifv. CIT [1963] 50 ITR 1 (sq.
(ix)In determining whether a voluntary payment is taxable in the hands of the recipient or not, the point is not what the donor thought he was doing but why the donee received it. As observed in Herbert v. Mc Quade [1902] 2 KB 631, 'the test is whether from the stand point of the person who receives it, it accrues to him by virtue of his office; if it does, it does not matter whether it was voluntary or whether it was compulsory on the part of the persons who paid it'. The liability to income-tax is not negatived merely by reason of the fact that there was no legal obligation on the part of the person who contributed the money to pay it - P. Krishna Menon v. CIT [1959] 35 ITR 48 (sq.
8 I.T.A.No.2041/Del/2013 (x) In Dooars Tea Ltd. v. Commr. of Agri., IT (1963) 44 ITR 6, the Supreme Court has pointed out that it is necessary to bear in mind that the word 'income' as used in the Indian IT Act, 1922, is a word of elastic import and its extent and sweep are not controlled or limited by the use of the words 'profit and gains' and they have pointed out that the diverse forms which income may assume cannot exhaustively be enumerated, and so in each case the decision of the question as to whether any particular receipt is income or not must depend upon the nature of the receipt and the true scope and effect of the relevant taxing provisions.
(xi) In H.H. Maharani Shri Vijaykuverba Saheb of Morvi v. CIT, (1963) 49 ITR 594, it was held that a voluntary payment, which is made entirely without consideration and is not traceable to any source which a practical man may regard as a real source of his income but depends entirely on the whim of the donor, cannot fall in the category of 'income.' Thus voluntary and gratuitous payments which are connected with the office, profession, vocation or occupation may constitute income, although if the payments were not made, enforcement thereof cannot be insisted upon. These payments constitute income because they are referable to a definite source, which is the office, profession, vocation or occupation. It could thereof be said that such payment is taxable as having an origin in the office, profession, or vocation of the payee, which constitutes a definite source for the income. What is taxed under the Indian IT Act is income from every source (barring the exception provided in the Act itself) and even a voluntary payment, which can be regarded as having an origin, which a practical man can regard as a real source of income, will fall in the category of income, which is taxable under the Act."
9 I.T.A.No.2041/Del/2013 (xii)The motive of payer is not relevant while deciding whether a receipt is revenue or capital in nature. [Po H. Divecha V. CIT, (1963) 48 ITR 222 (SC)] (xiii)In the judgment of the Board in the case of Raja Bahadur Kamakshya Narain Singh of Ramgarh V. CIT [1943] 11 ITR 513 (PC), delivered by Lord Russell of Killowen, their Lordships of the Privy Council, after referring to the aforesaid two decisions, have observed as follows (p. 522):
The word 'income' is not limited by the words 'profits' and 'gains'. Anything which can properly be described as income is taxable under the Act unless expressly exempted.
We have perused the rival submissions of both the parties and the record placed before us. It has been argued by the Ld. A.R. that the amount of sundry creditors Rs.2,81,138/- and Rs.3.70 crores which has been treated as capital receipt, has not been taken into books of accounts. Further Ld. A.R. has submitted that the credit to the extent of Rs.2,81138/- having outstanding since several years, the litigation is pending against the assessee before the court for settling the same. 8.1 From the assessment order, it does not appear that the credit amounting to Rs.,2,81,138/- and the alleged capital receipt amounting to Rs.3.70 crores has ceased to exist. The contention of the assessee regarding the amounts not being considered in the books of accounts, needs verification for application of Section 41(1) of the Act. We, therefore, in the interest of justice, set aside the issue to the Assessing Officer for verification whether the 10 I.T.A.No.2041/Del/2013 amounts relating to sundry creditors of Rs.2,81,138/- and Rs.3.70 crores has been considered in the books of account. Accordingly, grounds raised
by the assessee stands allowed for statistical purposes.
9. In the result, appeal filed by the assessee stands allowed for statistical purposes. Order pronounced in the open court on 27th July, 2016.