TMI Blog2008 (2) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration from his followers, hence, on the basis of above meaning it cannot be termed as benefit or perquisite within the meaning of section 28( iv ) of the Act. There is one more reason which we would like to specifically mention i.e., that the assessee has taken gift earlier only once and that too some 25 years back and at that time, the department has not charged the same to tax in completing the assessment proceedings under section 143(3) of the Act and during those assessment proceedings, the then followers who made the gifts clearly stated that those gifts had been given out of personal regard and respect to the qualities of the assessee. In this year also, the same is the position and the Revenue has not brought on record any material to prove otherwise. Thus, we hold that these gifts are not of the nature of any benefit or perquisite as contemplated under section 28( iv ) of the Act. Accordingly, we delete the addition made by the Assessing Officer. In the result, appeal filed by the assessee stands allowed. - R.K. GUPTA AND V.K. GUPTA, JJ. S.C. Tiwari for the Appellant. U.M. Pachabhaiye for the Respondent. ORDER V.K. Gupta, Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T [1959] 35 ITR 48 wherein it was held that the teaching of Vedanta was in the nature of carrying of vocation and in that process purchase of car by his disciples for him could be treated as value of any benefit or perquisite whether convertible into money or not arising from business or profession under clause 28( iv ) of the Act. The Assessing Officer, thereafter, held that the facts of this case were comparable to the case of Ram Kripal Tripathi ( supra ) as well as that of case of P. Krishna Menon ( supra ), hence, the provisions of section 28( iv ) of the Act were squarely applicable. Accordingly, he treated the gifts received by the assessee as his income from profession. 6. Aggrieved by this, the assessee carried the matter in appeal before the ld. CIT(A) wherein the assessee pointed out that the assessee was working tirelessly and restlessly over 50 years for the upliftment of the masses both on economic as well as spiritual front. It was also submitted that the occasion of his 80th Birthday, several disciples proposed to make gift on this auspicious occasion and these gifts were received at different centres at different dates. It was also brought to the notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of personal gift, then, it was not taxable and when it was in the nature of remuneration, then, it was taxable. Thus, according to the ld. Counsel, every receipt in such circumstances was not to be treated as income rather there was a presumption of personal gift in such cases. The ld. Counsel, thereafter, referred to the decision of the Hon ble Supreme Court in the case of Parimisetti Seetharamamma v. CIT [1965] 57 ITR 532 to contend that in all cases in which the receipt was sought to be taxed as income, then, the burden lied upon the department to prove that it was within the taxing provisions and where, however, a receipt was of the nature of income, the burden of proving that it was not taxable because it fell within an exemption provided by the Act, lied upon the assessee. The ld. Counsel contended that in the present case, gifts received by the assessee on earlier occasion had been accepted by the department, hence, it was incumbent upon the department to prove the difference of fact between both these occasions and also to investigate further to prove the real nature of these receipts. The ld. Counsel also placed reliance on the decision of Hon ble Madras High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, hence, the gift made by the followers, without being under any contractual or legal or customary obligations, cannot be treated as a consideration arising out of carrying of vocation. We would further like to add that as far as provisions of Income-tax Act is concerned every receipt is not income though the term income has been defined in an inclusive manner, hence, such receipt must necessarily fall under the specific charging provisions. The Revenue Authorities have applied the provisions of section 28( iv ) of the Act wherein it is provided that any benefit or perquisite arising out of exercise of business or profession would be treated as income. These two words have been used in this provision i.e., benefit or perquisite and other condition is that such benefit or perquisite should arise out of exercise of business or profession. In the facts of the case, the Revenue has not established conclusively that the amount of gift arose to the assessee as a consequence of exercise of vocation because such gifts have got no element of consideration being paid for services obtained by the followers/disciples. It is also noted that both the words benefit and perquisite re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directly or indirectly or provision of some facility or amenity by one person to another person and from the very beginning, the person providing such facilities or concessions knows that whatever is being done is irretrievable to him as it has been granted to a person as a privilege or right of that person. Therefore, the word benefit has also to be interpreted in the same manner, i.e., at the time of execution of the business transaction, the one party should give to the other party some irretrievable benefit or advantage. In the instant case, the assessee had no such special right or privilege. The only privilege which it enjoyed was regarding no liability to pay any interest as the funds were interest-free. Hence, the assessee derived benefit to this extent only and had it been a case of interest being payable by the assessee originally which was waived subsequently, in part or toto, the same would have been a benefit under section 23( iv ) surely. Further, the provisions of section 28( iv ) can be applied in a number of situations but the bottom-line or crucial fact would always be circumvention of income by taking or receiving income in other forms. Therefore, the loan am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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