1969 (11) TMI 13

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..... uty on yarn. The assessee apprehended that it might be required to pay additional excise duty on the yarn supplied to the Bombay party. On February 8, 1948, the assessee called upon the Bombay party to pay a sum of Rs. 74,361 towards additional levy that might be required to be paid to the Government. It was made clear in that letter that in case the amount was not paid to the Government, the amount would be refunded to the Bombay party. The Bombay party paid the assessee the sum of Rs. 74,361 in March, 1948. The assessee, however, persuaded the Government that no such additional excise duty was payable by the assessee on the yarn supplied to the Bombay party. The result was that the money remitted by the Bombay party to the assessee toward .....

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..... capital reserve account. On the first issue the Tribunal's finding was that the amount received from the Bombay party did not constitute trading receipt of the assessee. On the second issue the Tribunal held that, even on the assumption that it was a trading receipt, it was not income for the assessment year 1951-52. Dr. Misra, appearing for the Commissioner, challenged the Tribunal's finding on the first issue. Dr. Misra urged before us that the receipt of Rs. 67,125 by the assessee in March, 1948, must be regarded as a trading receipt. Reference was made to the letter dated February 8, 1948, sent by the assessee to the Bombay party. A telegram sent by the assessee to the Bombay party, was quoted in that letter. In that telegram the sum o .....

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..... was agreeable to such adjustment. The Appellate Assistant Commissioner was not prepared to accept that position. The Tribunal has not gone into the question of the alleged consent of the Bombay party. We do not think that the alleged consent of the Bombay party would make much difference as regards the question whether there was any income of the assessee in the calendar year 1950. We have seen that the amount in question was received by the assessee as far back as March, 1948. There was no further receipt during the calendar year 1950. So, even on the assumption that there was a trading receipt during the year 1948, there was no income of the assessee during the calendar year 1950. The net result is that there was no income of the assesse .....

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