TaxTMI 
TaxTMI 
2020 (3) TMI 180
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....bunal allowed the appeal of the Assessee and set aside the order passed by the learned Income Tax Commissioner under Section 263 of the Act on 26.02.2010. 2. A Coordinate Bench of this Court admitted the present appeal on the following substantial question of law on 15.06.2011. "Whether on the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in setting aside the order of the Commissioner of Income Tax under Section 263 of the Income Tax Act?" 3. The Assessee in the present case availed the benefit of deferred sales tax payment under the Scheme announced by the State of Maharashtra and under the Scheme made a premature payment at NPV (Net Present Value) of the deferred amount of sales tax collec....
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....dings and undoubtedly two opinions were available in this regard, out of which one possible view has been adopted by the Assessing Officer. However, the Assessing Officer has considered a particular aspect of income and has adopted one of the possible view on the subject point, therefore, his order cannot be said to be erroneous on that particular point. To revise any order u/s 263, the twin conditions of erroneous plus prejudicial to the interests of Revenue to that extent must coexist. In this case, when the order is not erroneous, even if it is prejudicial to the interests of the Revenue, the same cannot be revised. Hence, we set aside the impugned order and uphold the assessment order." 6. Learned counsel for the parties fai....
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....Rs. 4,14,87,985/-. The issue is as to whether this amount, which the assessee could save, is to be treated as 'income' by applying the provisions of Section 41 of the Act. The Assessing Officer treated it as the revenue receipt and thereby income. Contention of the assessee is that it is a capital receipt, which is accepted by the High Court. 9. In a very detailed and exhaustive judgment rendered by the High Court, it has discussed the view taken by the Assessing Officer, which was confirmed by the Commissioner of Income Tax (Appeals). Thereafter, the High Court noted in detail the manner in which the Tribunal has dealt with the issue. A perusal of the judgment would show that the High Court took into consideration the prov....
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....s of the amendment made to the Bombay Sales Tax Act and noted above, may relieve the Assessee of his obligation, but that is not by way of obtaining remission. The worth of the amount which has to be remitted after 7 to 12 years has been determined prematurely. That has been done by find out its NPV. If that is the value of the money that the State Government would be entitled to receive after the end of 7 to 12 years, then, we do not see how ingredients of sub section (1) of section 41 can be said to be fulfilled. The obligation to remit to the Government the Sales Tax amount already recovered and collected from the customers is in no way wiped out or diluted. The obligation remains. All that has happened is an option is ....
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....o section 38 of the Bombay Sales Tax Act, 1959, the Assessee accepted the offer of SICOM, the implementing agency of the State Government, paid an amount of Rs. 3,37,13,393/- to SICOM, which, according to the Assessee, represented the NPV of the future sum as determined and prescribed by the SICOM. In other words, what the Assessee was required to pay after 12 years in 6 equal installments was paid by the Assessee prematurely in terms of the NPV of the same. That the State may have received a higher sum after the period of 12 years and in installments. However, the statutory arrangement and vide section 38, 4th proviso does not amount to remission or cessation of the Assessee's liability assuming the same to be a trading one. R....