TMI Blog2018 (1) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner of IT Jaipur [2017 (4) TMI 1287 - RAJASTHAN HIGH COURT] 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.In view of the above, the issue is answered in favour of the assessee and against the department. - D.B. Income Tax Appeal No. 147 / 2010, D.B. Income Tax Appeal No. 123 / 2016 - - - Dated:- 8-8-2017 - HON'BLE MR. JUSTICE K.S. JHAVERI AND HON'BLE MR. JUSTICE INDERJEET SINGH For the Appellant : Mr. Sanjay Jhanwar with Ms. Archana For the Respondent : Mr. R.B. Mathur with Mr. Prateek Kedawat JUDGMENT 1. By way of these appeals, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in (2010) 325 ITR 87 (Delhi) wherein it has been observed as under:- 7. We do not find any merit in this preliminary submission of the learned Counsel for the assessee. The assessing officer had made the addition in terms of Section 41(1) of the Act read with Section 28(i) of the Act, which was upheld by the Commissioner (Appeals). No doubt, the Tribunal has held that Section 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay High Court has interpreted this very Clause in the case of Mahindra Mahindra Ltd. v. CIT MANU/MH/0199/2003 : (2003) 261 ITR 501 (Bom) in the following manner: The-income which can be taxed under Section 28(iv) must not only be referable to a benefit or perquisite, but it must be arising from business. Secondly, Section 28(iv) does not apply to benefits in cash or money see 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund being set at naught on a future date will not be a relevant consideration. Once the assessee gets back the amount which was claimed and allowed as business expenditure during the earlier year, the deeming provision in Section 41(1) of the Act comes into play and it is not necessary that the Revenue should await the verdict of higher Court or Tribunal. If the Court or Tribunal 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 tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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