2008 (3) TMI 620 - AT - Income Tax

Capital reserve not taxable under Income-tax Act, Assessing Officer directed not to include sum as income.

The Tribunal held that the sum of Rs. 2.45 crores credited to the capital reserve account was not taxable under sections 28(iv) and/or 41(1) of the ... - Issues involved: The judgment deals with cross-appeals filed by the assessee and the Revenue against the order of the Commissioner of Income-tax (Appeals)-XXIX, Mumbai, regarding the addition of Rs. 2.45 crores under section 28(iv) and/or section 41(1) of the Income-tax Act, 1961, and the taxability of the sum of Rs. 2.45 crores credited to the reserve account.Assessee's Issue - Addition of Rs. 2.45 crores:The only issue raised by the assessee is against the addition of Rs. 2.45 crores under section 28(iv) and/or section 41(1) of the Income-tax Act, being the loan of the assessee repaid by a shareholder. The assessee argued that no benefit or perquisite was received, as the repayment was made by the shareholder to be released from its guarantee/obligation, and thus, it could not be considered as income from business. The provisions of section 28(iv) and 41(1) were deemed inapplicable based on legal precedents such as Mahindra and Mahindra Ltd. v. CIT [2003] 261 ITR 501 and ITO v. Ahuja Graphic Machinery P. Ltd. [2007] 111 TTJ 445 (Mum).Revenue's Issue - Taxability under different sections:The Revenue raised issues against the direction of the Commissioner of Income-tax (Appeals) in holding that the sum of Rs. 2.45 crores credited to the reserve account is taxable under section 28(iv) and/or 41(1) of the Income-tax Act, rather than under section 10(3). The Revenue contended that if taxed under section 10(3), the assessee should not be entitled to set off unabsorbed depreciation and consequential benefits. However, the Tribunal found that the waiver of the loan is not covered under section 28(iv) or 41(1) based on legal precedents and directed the Assessing Officer not to include the sum of Rs. 2.45 crores as income of the assessee.Conclusion:The Tribunal concluded that the sum of Rs. 2.45 crores credited to the capital reserve account was not taxable under section 28(iv) and/or 41(1) of the Income-tax Act. The provisions of section 10(3) were also deemed inapplicable for charging any income to tax. Therefore, the appeal filed by the assessee was allowed, and the appeal filed by the Revenue was dismissed, directing the Assessing Officer not to include the said sum as income of the assessee.