M/S. Solid Containers Ltd vs The Deputy Commissioner Of … on 29 August, 2008

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                      
                 ORDINARY ORIGINAL CIVIL JURISDICTION




                                                              
                     INCOME TAX APPEAL NO.487 OF 2005

    M/s. Solid Containers Ltd.
    Tiececon House, Dr. E. Moses Road,




                                                             
    Mumbai-400 011.                                              .. Appellant

                versus




                                                 
    1. The Deputy Commissioner of Income-Tax,
        Spl. Range-I, Mumbai, having his office
                                 
        at Aayakar Bhavan, M.K. Road, 
        Mumbai-400 020.
                                
    2. The Commissioner of Income-Tax-I,
        having his office at
        Aayakar Bhavan,
             

        M.K. Road, Mumbai-400 020.                               .. Respondents
          



    Mr. A.R. Singh for the appellant.
    Mr. Vimal Gupta for the respondents.





                                      CORAM : SWATANTER KUMAR, C.J. &
                                                   A.P. DESHPANDE, J.

                              DATED  OF RESERVING THE JUDGMENT :     5TH AUGUST, 2008
                             DATE OF PRONOUNCING THE JUDGMENT :  29TH AUGUST, 2008





    JUDGMENT (Per Swatanter Kumar, C.J.)

This appeal is directed against the order passed by the

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Income Tax Appellate Tribunal, Mumbai Bench dated 31st December,

2001 wherein the Tribunal has rejected the contention raised by the

Assessee that the loan was a capital receipt and has not been

claimed as deduction from the taxable income as expenses and,

therefore, did not represent income under section 41(1) and, thus,

sustained the addition of Rs.6,86,071. The Assessing Officer had

made the addition on the ground that the credit balance returned back

is the income of the Assessee in view of the fact that it is again

directly arising out of the business activity and the same was liable to

be taxed under section 28 of the Act. The learned counsel appearing

for the appellant argued that the impugned order suffers from error of

law as well as of appreciation of facts. While relying upon the

judgment of this court in the case of Mahindra & Mahindra v.

Commissioner of Income tax, 2003 ITR 261, page 501, it was

contended that in relation to the transaction in question, section 28(iv)

was not attracted and even provisions of section 41(1) of the Act

could not be applied to treat the same as business income of the

Assessee liable to tax.

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2. In order to examine whether any substantial question of law

arises in the present appeal or not, reference to basic facts may be

necessary. The Assessee-appellant had taken a loan of

Rs.6,86,071/- during the previous year for business purposes which

was returned back, as a result of consent terms arrived at between

M/s. P.S. Jain Motors on the one hand and the Assessee on the

other. The Assessee claimed that the said loan was the capital

receipt and has not been claimed as deduction from the taxable

income as expenses and therefore, did not come under section 41(1).

As already noticed, this contention was rejected by the Assessing

Officer on the ground that credit balance returned back is the income

of the Assessee in view of the fact that it is again directly arising out of

the business activity of the Assess and was liable to tax under section

28 of the Act. The order was appealed against. Commissioner

partially allowed the appeal. Aggrieved from the order of the Income

Tax Commissioner (Appeals), further appeal was preferred before the

Income Tax Appellate Tribunal which again allowed the appeal on

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other counts but on the above issue and while relying upon the

judgment of the Supreme Court in the case of Commissioner of

Income Tax, Madurai v. T.V. Sundaram Iyengar and Sons Ltd., (1996)

6 SCC 294, sustained the view taken by the Commissioner. The

Tribunal held as under:

“8. We have carefully considered the
submissions made by the rival parties. The

assessee company had taken certain loan from M/s.
P.S. Jain Motors. This amount was payable to them

with interest of Rs.2,83,819/-. The party filed a suit
for recovery and thereafter the assessee company

filed counter-claims and the matter was settled out of
the court whereby the assessee company was not to
pay any amount. The assessee company credited
to the profit and loss account the interest amount

and offered the same for taxation. With regard to
the addition of Rs.6,86,071/-, the assessee company

directly credited the amount to the reserves account
considering the same as capital receipt. It was
claimed by the learned counsel that the amount was
not a deemed profit under section 41(1) of the Act.

According to the learned counsel, this amount
cannot be charged even under the provisions of
section 28 of the Act as the amount earned is neither
a revenue receipt nor intended for revenue account.

In this connection, we would like to refer to the
decision of the Honourable Supreme Court in the
case of CIT vs. T.V. Sundaram Iyengar and Sons
Ltd. (1996), 222 ITR 344 wherein the Honourable
Supreme Court has laid down that “If the amount is

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received in the course of trading transactions, even
though it is not taxable in the year of receipt as being

of capital 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. Where the assessee
received deposits in the course of trading
transactions, the amount of such credit balances

which were barred by limitations and which were
written back by the assessee to the profit and loss
account were to be assessed as the assessee’ s
income”. In view of the above decisions of the Apex

Court and also keeping in view the provisions of
Section 28(iv) of the Act, we find full justification for

making the addition of Rs.6,86,071/-. Accordingly,
the findings of the learned CIT (A) are upheld.”

It is worthwhile to refer to observation of Apex Court in T.V.

Sundaram (supra).

22. The principle laid down by Atkinson, J.

applies in full force to the facts of this case. If a
common sense view of the matter is taken,l the
assessee, because of the trading operation, had

become richer by the amount which it transferred to
its profit and loss account. The moneys had arisen
out of ordinary trading transactions. Although the
amounts received originally were not of income

nature, the amounts remained with the assessee
for a long period unclaimed by the trade parties. By
lapse of time, the claim of the deposit became time-
barred and the amount attained a totally different
quality. It became a definite trade surplus.

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Atkinson, J. pointed out that in Tattersall case no
trading asset was created. Mere change of method

of bookkeeping had taken place. But, where a new
asset came into being automatically by operation of

law, common sense demanded that the amount
should be entered in the profit and loss account for
the year and be treated as taxable income. In other
words, the principle appears to be that if an amount

is received in course of a 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, common sense demands that the
amount should be treated as income of the

assessee.

23. In the present case, the money was
received by the assessee in course of carrying on

his business. Although it was treated as deposit
and was of capital nature, at the point of time it was

received, by efflux of time the money has become
the assessee’ s own money. What remains after
adjustment of the deposits has not been claimed by
the customers. The claims of the customers have

become barred by limitation. The assessee itself
has treated the money as its own money and taken
the amount to its profit and loss account. There is
no explanation from the assessee why the surplus

money was taken to its profit and loss account even
if it was somebody else’ s money. In fact, as
Atkinson, J. pointed out that what the assessee did
was the common sense way of dealing with the
amounts.”

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3. The present appellant can hardly drive any advantage from

the case of Mahindra & Mahindra Ltd. (supra). As in that case, a

clear finding was recorded that the Assessee continued to pay

interest at the rate of 6% for a period of 10 years and the agreement

for purchase of toolings was entered into much prior to the approval

of loan arrangement given by the reserve Bank of India. Therefore,

the loan agreement, in its entirety, was not obliterated by such waiver.

Secondly, the purchase consideration related to capital assets. The

toolings were in the nature of dies and the Assessee was a

manufacturer of heavy vehicles. The import was that of plant and

machinery and the waiver could not constitute business. The facts of

the present case are entirely different in as much as it was a loan

taken for trading activity and ultimately, upon waiver the amount was

retained in business by the Assessee. Thus, the principle stated by

the Supreme Court in the case of T.V. Sundaram Ayengar & Sons

Ltd. (supra) would be squarely applicable to the facts of the present

case. The amount which initially did not fall within the scope of the

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provisions rendering it liable to tax subsequently have become the

Assessee’
s income being part of the trading of the Assessee. Similar

view was also taken by a Bench of Madras High Court in the case of

Commissioner of Income tax v. Aries Advertising Pvt. Ltd., 2002 (255)

ITR 510. The court took the view that the Assessee because of

trading operation became richer by the amount which had been

transferred and/or retained in the Profit and Loss Account of the

Assessee.

4. In view of the above settled position of law and the facts of

the present case, we are of the considered view that no question of

law much less substantial question of law arises for consideration in

the present appeal. Appeal dismissed in limine.

CHIEF JUSTICE

A.P. DESHPANDE, J.

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