TMI Blog2009 (12) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... having regard to the nature of business only, it will constitute capital receipt. Thus answer the question in favour of the assessee and against the Revenue. As a consequence, we dismiss this appeal. - 51 of 2009 - - - Dated:- 23-12-2009 - A. K. SIKRI, SIDDHARTH MRIDUL JJ. Sanjeev Sabharwal for the appellant. Ajay Vohra with Ms. kavita Jha and Sriram Krishna for the respondent. JUDGMENT The judgment of the court was delivered by A. K. Sikri J.-The respondent (hereafter referred to as the assessee ) is an investment company registered with RBI as a NBFC. During the pre-vious year relevant to the assessment year 2003-04, the assessee reflected a loan of ₹ 6,80,31,189 payable to M/s. Jindal Steel Power Ltd. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing question of law : Whether in the facts and circumstances of the case, the learned Income-tax Appellate Tribunal erred in holding that the decrease in loan liability of ₹ 1,46,53,065 was not remission/cessation of liability and hence not taxable under section 41(1) of the Act ? 4. Thereafter, the Revenue filed amended memo of appeal raising the following question of law : Whether the amount of loan written off by the sister concern of the assessee is income of the assessee within the meaning of section 28 of the Income-tax Act, 1961 ? 5. We heard learned counsel for the parties on the question raised in the appeal/amended memo of appeal. In fact, in so far as the question of law raised initially in the appeal with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unlike the Com-missioner of Income-tax (Appeals) have no power to enhancement. The Revenue cannot be allowed to change the very foundation on which the assessment was based, to the prejudice and detriment of the assessee, as held by the hon'ble Supreme Court in the case of Mcorp Global Pvt. Ltd. v. CIT [2009] 309 ITR 434. 6. It was also pointed out that though the Commissioner of Income-tax (Appeals) had sustained the addition in terms of section 41(1) read with section 28(i) of the Act, he had only invoked clause (i) of section 28 of the Act and not clause (iv) thereof. In this behalf, the further submission of the learned counsel was that clause (i) of section 28 stipulates that the profits and gains of business or profession which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll wants that the addition be sustained under the provisions of clause (iv) of section 28 of the Act. The Revenue is not disputing the facts on the basis of which the decision of the Tribunal is based. The submission is that on these very facts, the provisions of section 28(iv) of the Act shall be attracted. It is a pure question of law and therefore, the amended ground as raised by the Revenue can be allowed. The position in Mcorp Global Pvt. Ltd. [2009] 309 ITR 434 (SC) was entirely different. In that case, the trans-action in question was treated as lease transaction in the earlier assessment years and depreciation was granted on that basis. However, in the assessment year in question, the same very transaction was treated as financial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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