Income Tax Appellate Tribunal - Delhi
Ratna Sagar (P) Ltd., New Delhi vs Dcit, New Delhi on 5 April, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "F": NEW DELHI
BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER
AND
SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
ITA No.4943/Jodh/2016
(ASSESSMENT YEAR-2014-15)
Ratna Sagar(P) Ltd. Vs DCIT
C/o. Raj Kumar & Circle-21(1)
Associates, CAs, New Delhi.
L.7A (LGF), South Ext.
Part-2
New Delhi - 110 049
PAN AAACR1294C
(Appellant) (Respondent)
Appellant By Sh. Raj Kumar, CA
Respondent Shri Atiq Ahmad, Sr. DR
by
Date of Hearing 08.01.2018
Date of Pronouncement 05.04.2018
ORDER
PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER
I TA N o. 4 943/D el/ 2 01 6 This appeal has been filed by the assessee against the order dated 23.8.2016 passed by the Ld. CIT(A) -12, New Delhi for assessment year 2014-15.
2. The brief facts of the case are that the return of income for the year was Rs. 32,39,69,460/- whereas the assessment was completed at an income of Rs. 32,54,69,460/- after making an addition of Rs. 15,00,000/-. During the course of assessment proceedings the A.O. noticed that the assessee had written off an amount of Rs. 15,00,000/- in respect of loan no longer payable but while computing the taxable income this amount was excluded considering the same as capital receipt. The assessee was specifically asked to explain the same and in response the assessee submitted before the A.O. that the loan was taken long time back and it was never claimed as an expense and therefore the write back of the loan was not a taxable item. However the A.O. did not agree to the contentions of the assessee and proceeded to write back this amount of Rs. 15,00,000/- and completed the assessment u/s 143(3) of the Income Tax Act 1961 (hereafter called the Act). Aggrieved the assessee approached the Ld. CIT(A) who upheld the addition. Now the assessee has approached the ITAT and has challenged the confirmation of addition by the Ld. CIT(A).
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3. Ld. AR submitted that the provisions of section 41(1) of the Act had been incorrectly invoked by the A.O. as the impugned amount had not been claimed as deduction in any earlier year and the amount when received as loan had been directly credited to the capital account by the assessee. It was further submitted that another pre condition for invoking provision of section 41(1) of the Act was that the deduction should have been in respect of loss, expenditure or trading liability whereas the impugned amount was neither in the nature of loss nor expenditure nor had trading liability but loan taken on interest. It was submitted that due to this reason also section 41(1) of the Act was not attracted. Reliance was placed on the judgment of the Hon'ble Delhi High Court in the case of CIT vs. Velocient Technologies Ltd. (2015) 120 DTR(Del) 201 for the proposition that where amounts were never treated as trading receipts but as unsecured loans, they could not be considered as trade receipts or loss from expenditure so as to attract provision of section 41(1) of the Act.
4. In response the Ld. Sr. DR placed extensive reliance on the order of the A.O. as well as of the Ld. CIT(A) vehemently argued that the addition had been rightly made.
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5. We have heard the rival submissions and have also perused the material on record. The facts in this case are undisputed. It is seen that assessee had taken a loan of Rs. 15,00,000/- from M/s. CRB Corporation Limited during assessment year 1995-96 and interest had been provided upto 31.3.2000 amounting to Rs. 6,42,600 (net of TDS). During assessment year 2014-15 i.e the year under consideration the assessee considered the amount of Rs. 15,00,00/- and Rs. 6,42,600/- as non refundable and write back the amount in assessment year 2014-15 by crediting Rs. 15,00,000/- and Rs. 6,42,600/- to the profit and loss account. The assessee offered the amount of Rs. 6,42,600/- as income u/s 41(1) of the Act but deducted the amount of Rs. 15,00,000/- in the computation of income treating the same as capital in nature. It is also undisputed that this amount of Rs. 15,00,000/- was never claimed as deduction or allowance in assessment year 1995-96 or in any subsequent assessment years. Although the Ld. CIT(A) has held that this unilateral write off liability by the assessee company attracted explanation I to section 41(1) of the Act and has upheld the disallowance. It remains undisputed that the impugned amount was never treated as a trading receipt but as loan which was credited directly to the capital account. Accordingly by no stretch of Page | 4 I TA N o. 4 943/D el/ 2 01 6 imagination could the impugned amount be considered as a trading receipt or loss due to loss from expenditure. Ld. CIT(A) while upholding this addition has placed reliance on the judgment of the Hon'ble Apex Court in the case of CIT vs. P.V. Sundaram Iyengar & Sons Ltd. 222 ITR 344 (Supreme Court) but we find that the reliance of the Ld. CIT(A) on this judgment of the Hon'ble Apex Court is misplaced as the basic and primary criteria laid down in the case of CIT vs. P.V. Sundaram Iyengar & Sons Ltd. (Supra) was that the money should have been received in the course of trading transactions. However in the present case merely because of the reason that the money has been forfeited by the assessee, the same cannot be considered to be the income of the assessee chargeable to tax under the Act as the impugned amount was not received in the course of ordinary trading transaction but was a loan amount which was written back by the assessee. The assessee has already offered to tax the amount of unpaid interest amounting to Rs. 6,42,600/- which it had claimed as deduction in the earlier years. It is undisputed that no deduction has been claimed for this amount in any of the assessment years prior to assessment year 2014-15. Section 41(1) of the Act empowers the revenue to treat the amount claimed one way or the other in the previous years as the Page | 5 I TA N o. 4 943/D el/ 2 01 6 asssssee's income and bring it to tax relates to deductions made for any year in respect of loss, expenditure or trading loss whereas in the present case, by stretch of imagination could be the amount of Rs. 15,00,000/- be treated as loss, expenditure or trade liability. In the present case the amounts were never treated as trading receipts but as loan. We find that this case is covered in favour of the assessee by the judgment of the Hon'ble Delhi High Court in the case of CIT vs. Velocient Technologies Ltd. (supra) and on facts we are unable to agree with the findings of the Ld. CIT(A). Accordingly respectfully following the judgment of Hon'ble High Court in the case of CIT vs. Velocient Technologies Ltd. (supra) we set aside the order of Ld. CIT(A) and direct the A.O. to delete this addition.
6. In the final result the appeal of the assessee stands allowed. Order pronounced in the Open Court on 05/04/2018.
sd/- sd/-
(PRASHANT MAHARISHI) (SUDHANSHU SRIVASTAVA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated : 05 /04/2018
Veena
Copy to:
1. The Appellant
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I TA N o. 4 943/D el/ 2 01 6
2. The Respondent
3. The CIT
4. The CIT(A)
5. The DR
Assistant Registrar
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