DCIT 8(3), MUMBAI vs. SJR COMMODITIES & CONSULTANCIES P.LTD, MUMBAI

Brief facts of the case are that the assessee-company is engaged in the business of manufacturing and dealing in Diamonds and semi precious stones, filed its return of income on 21.10.2007, declaring total income at Rs. 30,63,530/-. The assessment was completed on 04.12.2009 u/s 143(3) of the Act. While framing assessment, the Assessing Officer (AO) besides the other addition and disallowance made the disallowance of interest of Rs. 95,85,467/- and further disallowed Rs. 21,07,126/- u/s 41(1) of the Act. On appeal before the ld. CIT(A), both the disallowance was deleted. Thus, aggrieved by the order of ld. CIT(A), the assessee filed the present appeal before us.

We have heard the ld. Departmental Representative (DR) for the Revenue as well as ld. Authorized Representative (AR) of the assessee and considered the relevant material available on record. At the outset, it was submitted by ld. AR of the assessee that Ground No. 1 & 2 raised by the Revenue in the present appeal is covered in favour of assessee by the decision of Tribunal in assessee’s own case for AY 2004-05 in ITA No. 2120/Mum/2008. It was further submitted that the order of Tribunal was further followed in appeal for AY 2005-06 in ITA No. 4066/Mum/2009 dated 11.01.2012. Ld. DR for the Revenue not disputed the decision for AYs 2004-05 and 2005-06.

We have considered the contention of both the parties and seen that similar Grounds of appeal were raised by Revenue for AY 2004-05 and further for AY 2005-06. The Co- ordinate Bench of this Tribunal while considering the Grounds of appeal passed the following order: “3 We have heard the ld DR as well as the ld AR of the assessee and considered the relevant material on record. At the outset, we note that this issue has been considered and adjudicated by the Tribunal in assessee's own case for Assessment Year 2004-05 in ITA No. 2120/Mum/2008 vide order dated 29th SJR Commodities & Consultancies P Ltd Sept 2011. We further note that the CIT(A) has allowed the claim of the assessee by following the order of the Assessment Year 2004-05.

4 This issue has been decided against the revenue by the Tribunal and in favour of the assessee for the Assessment Year 2004-05 in para 5 as under:

Ground No.3 relates to deleting the disallowance u/s 41(1) of the Act. Ld. DR for the Revenue supported the order of AO and prayed for restoring the order of AO by setting- aside the order of ld. CIT(A). On the other hand, ld. AR of assessee supported the order of ld. CIT(A). Ld. AR of assessee further argued that AO wrongly applied the decision of Hon’ble Apex Court in case of T.V. Sundaram Iyenger & Sons Limited 222 ITR 344. The case of assessee is infact covered by the decision of Hon’ble Apex Court in Sugauli Sugar Works Pvt. Ltd. 236 ITR 518. The assessee has not credited the amount to the Profit & Loss A/c in the year under consideration and the same was declared in AY 2013-14 and no addition was called for. The ld. AR of assessee submitted that these fact was brought in the notice of ld. CIT(A) and after considering the contention of assessee, the disallowance was deleted.

We have considered the contention of both the parties and have gone through the order of authorities below. During the assessment proceeding, the AO observed that assessee has shown an amount of Rs. 21,07,126/- due to M/s Planet Star Trading Pvt. Ltd. for more than three years. The AO issued show-cause notice to the assessee that as to why the amount should not be treated as cessation of liability u/s 41(1) of the Act. The assessee filed its reply. In the reply, the assessee contended that unilateral entries in the accounts will not amount to cessation of liability, section 41(1) contemplate the obtaining by the assessee an amount either in cash or in any other way whatsoever benefit by way of remission of cessation. It should not be particular amount obtained by him. It was further contended for the obtaining benefit to the assessee by virtue of remission of cessation is sine-qua-non for the application of this section. The mere fact that assessee has made an entry or transfer in its account unilaterally will not unable the department to say that 4 M/s SJR Commodities & Consultancies Pvt. Ltd. section 41(1) of the Act would apply and amount be included in the total income of the assessee. The assessee also relied upon the decision of Sugauli Sugar Works Pvt. Ltd.(supra). The contention of assessee was not accepted by AO while relying upon the decision of T.V. Sundaram Iyenger & Sons Limited (supra) and disallowed the amount. The similar contention was urged before the ld. CIT(A). The ld. CIT(A) after considering the fact, passed the following order: “From the analysis of the decision of hon'ble Supreme Court and hon'ble Gujarat High Court (supra), it is held that the decision in case of TV.Sundaram Iyengar & sons Ltd. which is relied on by the A.O. is not applicable to the facts of the present case because in that case, the hon'ble Apex Court has held that when the assessee has debited the unclaimed balance to the profit & loss account, only then it cover u/s 41 (1) of the I.T. Act. But, in the present case, the assessee has credited this amount to the profit & loss account in the year under consideration, therefore, this decision is not applicable to this case. However, the decision of hon'ble Supreme Court in case of Sugauli Sugar Works and the hon'ble Gujarat High Court in case of CIT Vs. G.K.Patel & Co. is applicable to the facts of the present case because as per the decision of hon'ble Supreme Court in this case there is no unilateral act of the assessee of making any entry in the account of trading agency in the profit & loss account. Secondly, there should be an event of cessation of liability to take place. If anything happens during the year under consideration it cannot be said that the liability has to be ceased to exist. In case of remission there has to be a waiver by a creditor in favour of the assessee either unilaterally or through contractual agreement. Further, there has to be a positive act on the part of the creditor in the current year which would provide the benefit to the assessee by way of remission. If no such act takes place then there is no case for holding that a liability has been remitted in favour of the assessee. "Merely because certain amount is outstanding for a number of years it cannot be said that there is cessation or remission. Since in the present case, the assessee has not credited this amount to the profit & loss account in the year under consideration and moreover the assessee has declared this amount in AY. 2013-14 by reflecting the entry of Rs. 21,07,1261- to the profit & loss account, therefore, no addition is called for in the under consideration. In totality of facts & circumstances, it is held that the decision of hon'ble Supreme Court in case of T.V. Sundaram Iyengar & Sons Ltd. relied on by the AO. is not applicable to the facts of the present case, but, it is squarely covered by the decision of hon'ble Supreme Court in case of Sugauli Sugar Works Pvt. Ltd. and the case of the hon'ble Gujarat High Court in case of G.K.Patel & Co., thus, the disallowance made by the AO is deleted and the ground of appeal is allowed.”

In the result, appeal of the Revenue is dismissed.