TaxTMI 
TaxTMI 
2020 (3) TMI 180
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....d 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 collected by it for the year in question. The Assessing Auth....
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.... 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 fairly submit that the controversy is no longer res integra as the Hon'bl....
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.... 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 provisions of Section 41 of the Act and the conditions which are required to be satisfied for bringing a p....
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.... 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 given to the Assessee to approach the SICOM and request it to consider the application of the Assessee of premature payment and di....
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....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. Rather that obtains a payment to the State prematurely and in terms of the correct value of the debt due to it. There is no evidence to show that there ....