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2012 (7) TMI 452 - ITAT, JAIPURTrading liability or capital liability - income u/s 2(24) read with section 41(1) - the credit balance/s, written back in terms of the rehabilitation scheme approved by the Board for Industrial and Financial Reconstruction (BIFR) included not only those on account of trading operations, but also on account of import of plant and machinery. - held that:- The write back under reference a receipt of capital nature. - however the credit written back being admittedly on account of import of plant & machinery, the cost of the relevant assets would be required to be recomputed, being not incurred to that extent (s. 43(1)). Trading liability or capital liability - income u/s 2(24) – Held that:- Without doubt, the nature of the liability stands to be determined independently, and the fact of the sum being credited to the running account of the said party, though relevant, cannot be considered to be conclusive or determinative of the matter, as assumed by the Revenue. - In any case, if it, as contended, represents a loan liability, i.e., on capital account, its write back would without doubt be only a capital receipt in the hands of the assesseecompany. - matter restored to the file of AO. Disallowance u/s. 36(1)(va) r/w s. 2(24)(x) of the Act - payment of the employee’s contribution to the Provident Fund being made by the assessee belatedly – Held that:- Payment in respect of the employee’s contribution to the welfare funds, as the EPF and ESI, by the assessee-employer would stand to be allowed as deduction where the contribution was made by the due date of filing the return of income under the Act – Against revenue Addition in respect of legal and professional charges paid/payable - by invoking the provision of section 40A(2)(a) of the Act - AO made a generalized statement to the effect that the consideration for such services, i.e., Rs. 104.66 lacs, exceeds the legitimate needs of the assessee-company for its business, treating the same to be unreasonable and excessive – Held that:- Onus u/s 40(A)(2) being directly on the Revenue - same has not been discharged by it in any manner - details of the charges raised qua various services performed or charged for is available, that would yield the basis for a decision with regard to the reasonability thereof, including with reference to the legitimate needs of the assessee’s business, could if at all be taken; in the clear absence of which, the Revenue’s case is no more than an allegation or a surmise - appeal by the Revenue is dismissed
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