TMI Blog2017 (4) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... se and particularly having regard to the nature of business only, it will constitute capital receipt. Even otherwise the loan which was taken was capital investment and always treated in the capital account as liability and if it is so, it will naturally go as wiping out the capital liability. In that view of the matter, the contention taken by the appellant is required to be accepted. The view taken by the CIT(A) is required to be restored and that of the tribunal is required to be reversed. The issue is answered in favour of the assessee - D.B. Income Tax Appeal No. 145 / 2010, D.B. Income Tax Appeal No. 144 / 2010, D.B. Income Tax Appeal No. 146 / 2010 D.B. Income Tax Appeal No. 148 / 2010 - - - Dated:- 26-4-2017 - HON'BLE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41(1) does not apply to which legal position is constituted (sic-conceded) by the learned Counsel for the revenue before us, the revenue still wants that the addition be sustained under provisions of Clause (iv) of Section 28 of the Act. The revenue is not disputing the facts on the basis of which decision of the Tribunal is based. Submission is that on these very facts, 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 (P) Ltd. (supra) was entirely different. In that case, the transaction in question was treated as lease transaction in the earlier assessment years and depreciation was granted on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT v. Alchemic (P) Ltd. MANU/GJ/0053/1980 : (1981) 130 ITR 168 (Guj). 4.1 The same view taken by the Madras High Court in The Commissioner of Income Tax vs. M/s Innvol Medical India Ltd. (2013) 219 Taxman 123 (Mad); Iskraemeco Regent Limited (Originally Seahorse Industries Ltd. and subsequently in Iskraemeco Seahorse Ltd.) vs. The Commissioner of Income Tax (2011) 331 ITR 317 (Mad); Mahindra and Mahindra Ltd. vs. Commissioner of Income Tax and Commissioner of Income Tax vs. Mahindra and Mahindra Ltd. (2003) 261 ITR 501 (Bom) and other judgment of Bombay High Court in CIT vs. Xylon Holdings (P) Ltd. in ITA No.3704/2010 decided on 13.9.2012 and decision of Gujarat High Court in Commissioner of Income Tax-I vs. Gujarat State Fertilizers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal upholds the levy at a later date, the assessee will not be without remedy to get back the relief. 5.1 He also relied upon the decision of Supreme Court in CIT vs. T.V. Sundaram Iyengar and Sons Ltd. (1996) 222 ITR 344 wherein it has been held as under:- The principle appears to be that if an amount is received in course of trading transaction, even though it is not taxable in the year of receipt as being of revenue character, the amount changes its character when the amount becomes the assessee's own money because of limitation or by any other statutory or contractual right. When such a thing happens, commonsense demands that the amount should be treated as income of the assessee. The assessee had received deposits in cours ..... X X X X Extracts X X X X X X X X Extracts X X X X
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