TMI Blog1993 (4) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was originally completed on 9-6-1981 determinig total income at Rs. 1,26,510. However, subsequently the said assessment was set aside by the CIT, W.B-VIII as per his order dated 4-5-1983 acting under section 263 of the Income-tax Act, 1961 with directions to Assessing Officer (AO) to make fresh assessment in accordance with direction given therein. The Assessing Officer was directed by the CIT under section 263 to examine the question of taxability of the sum of Rs. 13,67,711 which has been awarded in favour of the assessee by sole Arbitrator in the arbitration case between assessee and the M. E. S. Department in connection with execution of certain construction work as well as interest amount of Rs. 52,240. The Assessing Officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishing a bank guarantee as directed by the Hon'ble Calcutta High Court. The M.E.S. department was not satisfied with the order of the Single Judge of the Calcutta High Court and, therefore, preferred an appeal before the Division Bench. The said appeal was also dismissed by the Honble Calcutta High Court as per its order dated 15-2-1980. No further appeal to the Supreme Court was filed by the M.E.S. department. The assessee received a sum of Rs. 52,240 as interest from bank on the sum of Rs. 13,67,771 deposited by it representing the award money withdrawn from the High Court upon furnishing the bank guarantee. The Assessing Officer, therefore, in his assessment order dated 24-1-1986 passed pursuant to the direction of the CIT under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her right of appeal to the Supreme Court against the order and judgment of the Division Bench of the Hon'ble Calcutta High Court which was rendered on 15-2-1980. According to the assessee's counsel the M.E.S. department had 60 days', time under the Limitation Act to go to the Supreme Court challenging the order and judgment of the High Court dated 15-2-1980 and this period of 60 days got expired in the month of April 1980 and, therefore, if at all the amount of Rs. 13,67,711 is to be assessed it is only in the financial year 1980-81 relevant to assessment year 1981-82 and not as income for the financial year 1979-80 relevant to assessment year 1980-81. It is argued strenuously by Sri Bhattacharjee that on, 15-2-1980 when the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 13,67,711 is concerned the assessee's counsel submitted that the same is also not assessable in the assessment year 1980-81 since the assessee did not have absolute right over the award money during the previous year ending 31-3-1980. The said interest submitted by Sri Bhattacharjee was a casual and non-recurring income and not a regular income to be assessed in the assessment year 1980-81. The assessee's counsel relied on the decision of the Supreme Court in the case of Hindustan Housing Land Development Trust Ltd. In the end it was submitted by the assessee's counsel that the appeal be allowed reversing the order of the Appellate Commissioner. 4. The departmental representative, Sri Modak, on the other hand, relied on the reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsolute or vested right in and over the award money of Rs. 13,67,711. Until a right to a party to the dispute is not exercised then the other party to the dispute cannot say that it had no absolute right in and over a property or claim. The M.E.S. department only had vested a right of filing appeal to the Supreme Court which was available to it till 60 days from 15-2-1980 and this right admittedly was not exercised. Therefore, in our view the assessee did get an absolute right in and over the award money which it withdrew from the High Court on furnishing a bank guarantee. The facts and circumstances prevailing in the instant case clearly leads to an irresistible conclusion that the award money absolutely belonged to the assessee. This view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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