TMI Blog2003 (11) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... such finding that the deposit was forfeited or that at the end of the transaction the security deposit became the property of the assessee or that it changed from a capital receipt to a revenue receipt - we find no referable question of law arising out of the Tribunal's order. - - - - - Dated:- 18-11-2003 - Judge(s) : M. KATJU., U. PANDEY. JUDGMENT The judgment of the court was delivered by M. KATJU J. - This is an income-tax application under section 256(2) of the Income-tax Act, 1961, seeking reference of the following questions to us for our opinion: "Whether in view of the findings recorded by the Tribunal that the facts as narrated by the Departmental authorities have not been disputed, accepting deposits on loan under variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso to section 145(1) of the Act was applicable? Whether the Tribunal was justified in accepting the revision of income by the assessee in 1994 even though the return could have been revised up to March 31, 1993? Whether the Income-tax Appellate Tribunal was justified in relying upon the decision of the hon'ble apex court in Peerless General Finance and Investment Co. Ltd. [1992] 75 Comp Cas 12, for deciding the question whether a deposit which was treated initially as a capital can be converted into revenue receipt by completely overlooking the facts that the said deposit was not in respect of the proceedings arising out of the Income-tax Act especially when the activities and facts of Peerless Company case are not identical with tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly credited to the profit and loss account, and the same may be withdrawn since the deposit received under the scheme was capital in nature, and hence no part thereof was liable to tax. The assessee-company filed a revised computation of income in which it was stated that the assessee-company had erroneously transferred a part of the deposits to the credit of the profit and loss account, and that the collections received under the deposit schemes, were capital receipts by virtue of the contractual relationship between the assessee and the depositors, and that treatment of any receipt in the account of the assessee was not truly determinative of its character. However, the Assessing Officer rejected the assessee's claim and treated the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osits themselves can obviously not amount to income. Shri Shambhu Chopra, learned counsel for the Department, submitted that the amounts in question were really income in nature. However, we do not agree with this submission of learned counsel for the Department. In paragraph 18 of the Tribunal's appellate order it is mentioned that the new schemes promulgated from 1986 did not contain forfeiture clauses. In paragraph 28 of the Tribunal's appellate order it is mentioned that learned' counsel for the appellant, Shri Dastur made a statement in the court that during the year there was no forfeiture of any deposit and this statement remained uncontroverted by the Department. In Peerless General Finance and Investment Co. Ltd. v. Reserve B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held by the Supreme Court that the primary liability and onus is on the Department to prove that a certain receipt is liable to be taxed vide Parimisetti Seetharamamma v. CIT [1965] 57 ITR 532 (SC) In paragraph 18 of the Tribunal's order it has been mentioned that the Department has been unable to discharge the onus which was cast on it to prove that the deposits were revenue receipts and therefore liable to tax. We agree with the view taken by the Tribunal. For the reasons given above, we are of the opinion that no referable question of law arises out of the Tribunal's appellate order. Sri Chopra, learned counsel for the Department, has relied on the decision of the Supreme Court in CIT v. Karam Chand Thapar [1996] 222 ITR 112 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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