Income Tax Appellate Tribunal - Delhi
Indian Aluminium Cables Ltd. vs Deputy Commissioner Of Income-Tax on 17 June, 1999
Equivalent citations: [2000]73ITD109(DELHI)
ORDER
U.B.S. Bedi, JM.
1. This is assessee's appeal directed against the order of CIT(A)-XII, New Delhi dated 4-3-1993 relating to assessment year 1989-90 and following grounds have been raised :
"1. That the CIT(A) erred on facts and in law, in not allowing a deduction of Rs. 71,204 in respect of sales tax written off, instead in restoring the issue back to the Assessing Officer for fresh consideration.
2.1 That the CIT(A) erred on facts and in law, in confirming the action of the Assessing Officer in not allowing deduction for Rs. 51,168 in respect of security deposit forfeited, written off in the books of the appellant, or either business loss or short-term capital loss.
2.2 That the CIT(A) erred on facts and in law in observing inter alia that there was no transfer of any asset'."
2. At the time of hearing it was submitted by learned counsel for the assessee that assessee does not want to press ground No. 1 of the appeal as this issue was restored back to the file of Assessing Officer for fresh consideration and after re-assessment Assessing Officer has allowed the relief to the assessee. Ground No. 1 as such is dismissed as not pressed.
3. As regards ground Nos. 2.1 and 2.2 relevant facts are like this that in March, 1986, assessee had applied for a plot of industrial land at Panoli Gujarat, and for that purpose made a security deposit of Rs. 51,168 with Gujarat Development Industrial Corporation (GIDC). GIDC allotted the said plot of land to the assessee for a total sum of Rs. 17,75,397 and directed it to make payment of Rs. 3,03,911 within 30 days from the date of letter and the balance of Rs. 14,20,318 after two years along with 14% interest in 32 quarterly instalments. The terms of allotment had specified that the said plot was to be used within a period of 3 years and the transfer of unutilised plot was not permitted. At the time of allotment of the plot, the assessee felt that it had no possible use for the land in near future and considered the payment of the price of the land at that moment to be against its business interest. Under the circumstances, the assessee thought it prudent not to go ahead with the purchase of the plot and requested, GIDC to refund the security deposit. In doing so, the assessee was taking a risk because their was a condition in the allotment letter that assessee was not entitled to revoke its offer to buy the land before the expiry of 21 months. The offer could not in any way be considered to have been revoked unless the assessee had paid Rs. 3,03,911 within 30 days from the date of allotment. Considering the fact that assessee could not use the plot of land within 3 years and also considering the fact that it had to pay a huge sum of money which would have remained blocked had the land been purchased, it was expedient for the assessee to revoke the offer and lose the security deposit amounting to Rs. 51,168. Thus, this bona fide short-term capital loss is entitled to be claimed as a deduction on relinquishment of the rights in the land allotted to the assessee and assessee made claim, which was rejected by Assessing Officer. In appeal, it was pleaded that the Assessing Officer in spite of being apprised of the background of this claim, did not consider the facts in the proper perspective and made an addition of Rs. 51,168 merely on suspicion and surmises but remained unsuccessful before the first appellate authority. The assessee preferred second appeal and is before us. It was contended by learned counsel for, the assessee that since forfeiture of security amount of Rs. 51,168 was a bona fide short-term capital loss which assessee is entitled to claim as a deduction on relinquishment of rights in land allotted to the assessee so same should be allowed as claimed or in the alternative it should be allowed to be carried forward. So far as surrendering of right to purchase plot of land is concerned, same amounts to relinquishment of right while placing reliance on CIT v. A. R. Damodara Mudaliar & Co. [1979] 119 ITR 583 (Mad.), CIT v. Tata Services Ltd. [1980] 122 ITR 594 (Bom.), CIT v. Rasiklal Maneklal (HUF) [1989] 77 ITR 198 (SC), Kartikeya V. Sarabhai v. CIT [1997] 228 ITR 163/94 Taxman 164 (SC) and CIT v. Sterling Investment Corpn. Ltd. [1980] 123 ITR 441 (Bom.), it was pleaded for allowing the claim of the assessee.
4. On the other hand, learned DR while relying upon the basis and reasoning as given by authorities below has pleaded for confirmation of the order of learned CIT(A). So far as case law as relied upon by assessee's counsel is concerned it was submitted that in all these cases, ownership is a precondition whereas by mere issuance of letter of allotment, in the absence of any physical allotment or other documents, it cannot be said that assessee bought any asset or acquired any right in the capital asset and therefore, ratio of these decisions is not applicable to the facts of the case. Suo motu surrender of right or self-created surrender cannot amount to transfer or extinguishment of right. While relying upon Ahmedabad Bench decisions as in Patel Brass Works v. Asstt. CIT [1994] 50 ITD 322 and Delhi High Court decision as in CIT v. J. Dalmia [1984] 149 ITR 215/20 Taxman 86, it was pleaded for confirmation of order of authorities below. It was also submitted that statutory right to purchase is not a right in property and Delhi High Court as referred to supra has discussed in detail while relying upon certain Supreme Court decisions the meaning of right in property. Since there was no right in the property nor any agreement or any other document produced which conferred any right in the plot of land for which application was made by the assessee and only earnest money was deposited, so, on forfeiture extinguishment or relinquishment of right of the assessee which was not there at all.
5. To counter these submissions, the learned AR submitted that payment of earnest money and allotment letter gives right to property and even right to apply for purchase of property is a capital asset. Since right to apply is a vested right and surrendering of same amounts to relinquishment/extinguishment of such right and if any loss caused or forfeiture of earnest money is made, same is short-term loss and allowable as deduction or at the most it could be allowed to be carried forward. Reliance was also placed on, CIT v. B. C. Srinivasa Setty [1981] 128 ITR 294 in which relevant observation is at page 297. It was thus pleaded for acceptance of plea of the assessee
6. We have heard rival submissions, perused the record, gone through the orders of authorities below and also looked into the case law as cited by rival parties. Before arriving at any conclusion, we shall have first to look at relevant provisions in order to ascertain that forfeiture of earnest money by GIDC on non-payment of balance of the amount of consideration in instalments within the stipulated period would amount to relinquishment of right in the plot of land allotted by GIDC in pursuance to assessee applying for said plot by depositing earnest money and whether allotment of plot amounts to acquiring of any right in the land which could tantamount to acquisition of capital asset or not. Sections 2(14) and 2(47) of the Income-tax Act are relevant in this regard. Section 2(14) reads as under :
Section 2(14) : "Capital asset" means property of any kind held by an assessee, whether or not connected with his business or procession, but does not include -
(i) any stock-in-trade, consumable stores or raw materials held for the purposes of his business or profession;
(ii) personal effects, that it to say, movable property (including wearing apparel and furniture but excluding jewellery) held for personal use by the assessee or any member of his family dependent on him.
Explanation : For the purposes of this sub-clause "jewellery" includes-
(a) ornaments made of gold, silver, platinum or any other precious metal or any alloy containing one or more of such, metals, whether or not containing any precious or semi-precious stone, and whether or not worked or sewn into any wearing apparel;
(b) precious or semi-precious stones, whether or not set in any furniture, utensil or other article or worked or sewn into any wearing apparel;
(iii) agricultural land in India, not being land situate -
(a) in any area which is comprised within the jurisdiction of municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or any other name) or a cantonment board and which has a population of not less than ten thousand according to the last preceding census of which the relevant figures have been published before 1st day or previous year; or
(b) in any area within such distance, not being more than eight kilometers from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanisation of that area and other relevant considerations, specify in this behalf by notification in the Official Gazette;
(iv) 6 1/2 per cent Gold Bonds, 1977, or 7 per cent Gold Bonds, 1980, or National Defence Gold Bonds, 1980 issued by the Central Government;
(v) Special Bearer Bonds, 1981, issued by the Central Government."
7. As per section 2(14), Capital asset connotes property of any kind held by an assessee whether or not connected with his business except that property which falls within one of the exceptions specifically enumerated in sub-clauses (i) to (v). The expression 'Property' has not been defined in the Act. It occurs in several other enactments in which also it has not been defined. Its meaning has been considered in several judicial decisions in the context of those enactments - refer CIT v. Currimbhoy Ibrahim & Sons [1935] 3 ITR 395 (PC.)
8. Since the expression 'Property' is a term of wide connotation and it is not only the thing which is subject-matter of ownership but includes also the dominium or the right of ownership. The expression is indicative and descriptive of every possible interest which a person can have. It embraces within its purview both corporeal and incorporeal rights. It has been observed by the Supreme Court in Commissioner of Hindu Religious Endowments v. Lakshmindra Tirth Swaminar of Srishirur Mutt AIR 1954 SC 282 that there is no reason why the word 'property' (as used in Article 19(1)(f) of the Constitution) should not be given a liberal and wide connotation and should not be extended to those well-recognised types of interests which have the insignia or characteristics of "Property Right".
9. According to the Supreme Court in Ahmed G. H. Ariff v. CWT [1970] 76 ITR 471 (SC), "property" is a term of the widest import and, subject to any limitation which the context may require, it signifies every possible interest which a person can clearly hold or enjoy.
10. In the Bank nationalisation case, viz., Rustom Cavasjee Cooper v. Union of India AIR 1970 SC 564, the Supreme Court observed that in its natural connotation "property" means the highest right a man can have to anything being that right which one has to lands or tenements, goods or chattels which does not depend upon another's courtesy; it includes ownership, estates and interests in corporeal things, and also rights such as trade-marks, copyrights, patents and even right in personam capable of transfer of transmission such as debits; and signifies a benefit right to or a thing considered as having a money value, especially with reference to transfer or succession and to their capacity of being injured.
11. Thus the "property" would comprise of bundle of rights and interests which a person may conceivably hold and enjoy or such rights which a person may lawfully exercise to the exclusion of others or which he is entitled to use and enjoy as he pleases provided he does not infringe any law of the State.
12. The expression "property" would take in both tangible and intangible assets.
13. Property may be movable or immovable. In Transfer of Property Act, 1882, modes and incidence of certain transfers of property are laid down, such as (i) sale, mortgage and lease of immovable property, (ii) exchanges, (iii) gifts, and (iv) actionable claims.
14. Section 3(26) of General Clauses Act, 1897, lays down that "immovable property" shall include land, benefits to and arising out of land and things attached to earth or permanently fastened to anything attached to the earth and section 3(36) of said Act defines "movable property" to mean property of every description except immovable property. It does not define the word "property" as such.
15. In section 2(6) of the Registration Act, 1908, "immovable property" has been defined as including land, building, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to earth, but not standing timber, growing crops or grass but the term "property" has not been defined.
16. In the Wealth-tax Act, charge is on "net wealth" and in determining "net wealth", value of all "assets" belonging to an assessee are to be taken into account and the term "asset" has been defined in section 2(e) as "property of every description, movable or immovable" excluding those which are specifically enumerated. Thus, the definition of "asset" in section 2(e) of the Wealth-tax Act, 1957, is similar to that of "capital asset" in section 2(14) of the Income-tax Act, 1961. The only difference is that whereas section 2(e) of the Wealth-tax Act uses the expression "property of every description, movable or immovable" section 2(14) of the Income-tax Act, 1961 uses the expression, "property of any kind" and connotation of both the expressions is the same. The word "property" has, however, not been defined in said Act also and its meaning would be limited by the context.
17. Insection 2(xxii) of the Gift-tax Act, 1957, the term "property" has been defined to include any interest in property, movable or immovable.
18. As per Lexicon, in Wharton's Law Lexicon, 4th edition, "property" is described as highest right a man can have to anything, being used for that right which one has to lands or tenements, goods or chattels, which does not depend on another's courtesy and which is really acquired by entry, conveyance, descent or devise and in personality, by many ways but most usually by gift, bequest or bargain and sale.
19. Article 19(1) of the Constitution before its omission by the Forty Fourth Amendment Act, 1978 w.e.f. 20th June, 1979 laid down that all citizens shall have the right to acquire, hold and dispose of property. The expression "property" in this Article came up for interpretation before the Courts in several cases and the following have been held to be "property" within the meaning of said Article viz, (i) the office of a Mahant Shri Lakshimindra Tirtha Swaminar Srishirur Mutt's case (supra), (ii) Angurbala Mullick v. Debabrata Mullick AIR 1951 SC 293, (iii) State of Bombay v. F. V. Balsara AIR 1951 SC 318, (iv) Decree of the Court Mahboob Begum v. Hyderabad State AIR 1951 Hyd., (v) Kumaran Nambudiri v. Cochin Devaswam Board AIR 1954 Trav. - Coch. 515 and (vi) tenant's interest in demised premises Bombay Corpn. v. Lal Pancham AIR 1965 SC 1008.
20. As regards the concept of "property" in relation to definition of "capital asset" in section 2(14) is concerned, it is justified out that as according to section 2(14) "capital asset means property of any kind" ... It has been observed in Syndicate Bank Ltd. v. Addl. CIT [1985] 155 ITR 681/29 Taxman 32 (Kar.) that use of the word "means" shows that the definition is a hard and fast definition and that no other meaning can be assigned to the expression that what is put down in the definition. Hence the expression "capital asset" must include property of any kind held by the assessee on the surface of the earth, except what has been expressly excluded by sub-clauses (i) to (v) thereunder. But for this exemption, statutorily provided, these exempted properties would also otherwise fall within the defined meaning. The term "capital asset" has thus an all embracing connotation and includes every kind of property as generally understood except those that are expressly excluded from the definition, so too, the meaning of the expression "property" which includes every conceivable thing, right or interest.
21. And as regards the expression "property held by an assessee" is concerned, it is clarified that the property of any kind, in order to come within the ambit of section 2(14) must have been "held" by an assessee. The word "held" has not been defined. In CIT v. All India Tea & Trading Co. Ltd. [1979] 117 ITR 525 (Cal.) the expression "held by an assessee" used in the definition of "capital asset" in section 2(4A) of 1922 Act came up for consideration. In that case, the assessee was owner of certain agricultural lands which were first "requisitioned" by the Government cinder an Act and for that requisition assessee was given compensation which was held to be agricultural income. After requisition the lands were allotted to landless persons for agricultural purposes and they carried on agricultural operations and derived income from said lands and were in actual physical possession. At that stage these lands were acquired by the Government and compensation was to be paid to the assessee as owner of those lands and answer to the questions whether capital gains were payable depended on the question whether these agricultural lands could be regarded in law to have been 'held' by the assessee on the date of acquisition. The submission was that since on the date of acquisition the actual physical possession was with landless persons to whom the lands had been allotted after acquisition as lessees, and assessee had only symbolic or constructive possession, it could not be said that the agricultural lands in question were "held" by the assessee. This submission was rejected and it was held that word "held by an assessee" in the definition of "capital asset" would include not only physical and actual possession but also constructive and symbolic possession of property of any kind. It was also observed that if constructive or symbolic possession is not regarded to be included it would lead to an anomalous situations, namely, that the compensation for acquisition of nonagricultural land would not be taxable under the head "capital gains" in the hands of a lessor, whereas it would be assessable under that head in the hands of lessee when both lessor and lessee receive compensation as a result of compulsory acquisition.
22. Therefore, when the property is in actual physical possession of lessee and in constructive possession of lessor, the lessor would be regarded to hold that property as owner while the lessee would be regarded to hold the leasehold right, which is also a kind of property.
23. Similarly, sub-clause (47) of Section 2 of the Income-tax Act reads as under :
"Section 2(47) -
"Transfer" in relation to a capital asset, includes -
(i) the sale, exchange or relinquishment of the asset; or
(ii) the extinguishment of any rights therein; or
(iii) the compulsory acquisition thereof under any law; or
(iv) in a case where the asset is converted by the owner thereof into, or is treated by him as, stock-in-trade of a business carried on by him such conversion or treatment; or
(v) any transaction involving the allowing of the possession of any immovable property to be taken or retained impart performance, of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882); or
(vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, any immovable property.
Explanation : For the purposes of sub-clause (v) and (vi), 'immovable property' shall have the same meaning as in clause (a) of section 269UA :
And Clause (d) of section 269UA reads as under :
'(d) 'immovable property' means -
(i) any land or any building or part of a building, and includes, where any land or any building or part of building is to be transferred together with any machinery, plant, and furniture, fittings or other things also.
Explanation : For the purposes of this sub-clause, "land, building, part of a building, machinery, plant, furniture, fittings and other things" include any rights therein;
(ii) any rights in or with respect to any land or any building or a part of a building (whether or not including any machinery, plant, furniture, fittings or other things therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement of whatever nature), not being a transaction by way of sale, exchange or lease of such land, building or part of a building.'"
24. The definition of "transfer" in section 2(47) begins with the expression "includes". The word "includes" is often used in definition clauses in order to enlarge the meaning of the words and phrases occurring in the body of the statute and when it so used, those words and phrases must be construed as comprehending not only such things as they signify according to their nature and import, but also which the definition clause declares that they shall include. When such definition, expressly includes things which are not covered within the ordinary meaning of the word, it is clear that the intention of the legislature was to give, a wide meaning to that word itself apart from the definition.
25. The word "transfer" is a word of very wide meaning and includes every transaction whereby a party divests himself or is divested of a portion of his interest, that interest subsequently vesting or being vested in other party. The various modes of disposal of property enumerated in the definition of transfer in section 2(47) are by way of illustration and are not exhaustive. Some of those modes are within the plain meaning of the word "transfer" while other modes, though not within the plain meaning of the said word are enumerated by extending the meanings artificially.
26. The expression "transfer" should be read widely and not narrowly. This definition gives an artificially extended meaning to the term by including within its scope and ambit certain kinds of transactions which would not ordinarily constitute "transfer" in the accepted connotation of that word, e.g. "relinquishment of the capital asset" and "extinguishment" of any rights therein. In recent Supreme Court judgment in the case of Kartikeya V. Sarabhai (supra) meaning of "Transfer" has been defined as under :
"Section 2(47) of the Income-tax Act, 1961, defines "transfer" in relation to capital asset. It is an inclusive definition which inter alia provides that relinquishment of an asset or extinguishment of any rights therein amounts to a transfer, of a capital asset. It is not necessary for a capital gain to arise, that there must be a sale of a capital asset. Sale is only one of the modes of transfer envisaged by section 2(47) of the Act. Relinquishment of the asset or extinguishment of any right in it, which may not amount to a sale, can also be considered as a transfer and any profit or gain which arises from the transfer of a capital asset is liable to be taxed under section 45. A company, under section 100(1)(c) of the Companies Act, 1956 has a right to reduce the share capital and one of the modes which can be adopted is to reduce the face value of the preference shares. Section 87(2)(c) of the Companies Act, inter alia provides that 'where the holder of any preference shares has a right to vote on any resolution in accordance with the provisions of this sub-section, his voting right on a poll, as the holder of such share, shall, subject to the provisions of section 89 and sub-section (2) of section 92, be in the same proportion as the capital paid up in respect of the preference shares bears to the total paid-up equity capital of the company'. Hence, when as a result of the reducing of the face value of the share, the share capital is reduced, the right of the preference shareholder to the dividend on his share capital and the right to share in the distribution of the net assets upon liquidation is extinguished proportionately to the extent of the reduction in the capital. Such reduction of the right in the capital asset would clearly amount to a transfer within the meaning of that expression in section 2(47) of the Income-tax Act, 1961."
27. In view of the case law as relied upon and discussed above, arguments as advanced by both the sides, elucidation and elaboration as given to various terms in the light of case law and the expanded definition of capital asset and transfer, as amended from time to time and as applicable for the year under consideration, we find that right acquired on allotment of an industrial plot falls within the expression "property of any kind" used in section 2(14) of the Income-tax Act, 1961, and, is consequently a capital asset. The payment of earnest money in order to obtain such a right constitutes its cost of acquisition. Where such a right is given up, there is a transfer of capital asset. Whereas, in this case, assessee applied for allotment of industrial plot by depositing earnest money of Rs. 51,168 with the GIDC who allotted the said plot of land to the assessee for a total sum of Rs. 17,75,397 and directed it to make the payment of Rs. 3,03,911 within a period of 30 days from the date of the letter and balance of Rs. 14,20,318 after two years along with 14% interest in 32 quarterly instalments. Since the terms of allotment had specified that plot was to be used within a period of three years and the transfer of unutilised plot was not permitted, so assessee felt at the time of allotment of plot that it had no possible use for the land in near future and considered the payment of price of the land at that moment to be against the business interest. Under these circumstances, the assessee thought it prudent not to go ahead with the purchase of the plot and requested the GIDC to refund the security amount. Considering the fact that assessee could not use the plot of land within three years and also considering the fact that it had to pay huge sum of money which would have remained blocked had the land been purchased, it was seen expedient by the assessee to revoke the offer and loose the security deposit amounting to Rs. 51,168. Thus this was claimed as bona fide short-term capital loss as deduction on relinquishment of rights in the land allotted to the assessee which came to be rejected by the Assessing Officer. Therefore, in this case allotment of plot of land by GIDC falls within the expression "property of any kind" used in section 2(14) of the Act and is a capital asset and the payment of earnest money/security amount in order to obtain such a right constitutes cost of acquisition and since this allotment was given up by the assessee voluntarily, it amounts to relinquishment of such rights which amounts to transfer of capital asset. Since under the allotment letter the assessee had acquired the right to have the immovable property conveyed to it and as such it was under the law, entitled to exercise that right. During the, course of arguments, learned DR emphatically argued that no asset came into the possession of the assessee so neither there is any right acquired which could be termed as capital asset nor its surrender could amount to relinquishment of any right which, in fact, was not there. When specific quarry was made by the Bench to the DR that in general practice, allotment letters of not only flats, lands and house but even of movable property such as Maruti Cars etc. at one point of time, were being sold for consideration how can it be said that it is not a capital asset, he had no answer to offer. Therefore, in view of facts and circumstances and keeping in view the relevant law on the point, we are of the considered opinion that forfeiture of security deposit earnest money for surrendering allotment issued with respect to plot of land, on non-fulfilling of the other conditions of allotment is a capital loss which has rightly been claimed by the assessee as a short-term capital loss and in view of section 71(3), the same is not to be allowed to be set off against the income under the other head for the year but same is allowable to be carried forward and to be set off in subsequent years as per relevant provisions of law. We hold and direct accordingly. While holding so, we have properly considered each and every case law as relied upon by the respective parties without elaborately discussing each and every case law separately. However, as regards Delhi High Court decision in the case of Dalmia J. (supra) is concerned, which was heavily relied upon by the learned DR, we would like to point out that in this case it was held that right acquired by the assessee under the agreements to sell had to be held not to be a proprietary right and, hence, not a capital asset. In this case, one "K" had entered into an agreement with a contractor for construction of a building upon land owned by them and sale thereof to him. The earnest money was paid. In exercise of right to have the conveyance executed in the name of the nominee, the assessee was nominated. The assessee was constrained to file suit against the contractor for an injunction against selling the property and obtained the injunction. When the suit reached here, the parties agreed to go for arbitration and assessee gave up his claim for specific performance of the agreement and retained his right to claim damages. The arbitrator awarded damages in the sum of Rs. 1,02,500. The question before the Court was whether this amount could be assessed to be tax as capital gains. The High Court and the judgment of Bombay High Court in Tata Services Ltd.'s case (supra) distinguished it on facts. The Court said that in the case before it, it had to be determined that the damages received by the assessee were in respect of capital asset. There was a breach of contract and assessee received damages in satisfaction thereof. He had a mere right to sue for damages. Assuming the same to be property, it could not be transferred under section 6(e) of the Transfer of Property Act. The learned DR also placed reliance on, one Tribunal judgment as in the case of Patel Brass Works (supra). Facts are like this that assessee placed an order with a Bombay company for purchase of certain machinery and paid earnest money to then. Subsequently, it cancelled that order because of which it had to pay cancellation charges to the Bombay Company. The question arose whether there was any transfer of capital asset entitling assessee to claim aforesaid cancellation charges as short-term capital loss. Since the contract did not create any interest in the property, namely, machinery which the company agreed to fabricate and assemble by various components and machinery, it, therefore, could not be said that the contract with the Bombay company brought into existence any property which could be termed as capital asset as defined in section 2(14). The facts of the case cited and case in hand are distinguishable and not applicable in the case of assessee. As regards case law cited by the counsel for the assessee as referred to supra, ratio of these have been found to be applicable in this case and besides that, our view is further fortified by Bombay High Court's decision in the case of CIT v. Vijay Flexible Containers [1990] 186 ITR 693/48 Taxman 86.
28. As a result, appeal of the assessee gets partly accepted in above terms.