*1* 1.itxa959.12 sbw IN HIGH COURT OF JUDICATURE AT BOMBAY rt ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.959 OF 2012 ou Commissioner of Income Tax 1 ..Appellant Versus M/s. Bhor Industries Ltd. ..Respondent C ........... Mr. Suresh Kumar for Appellant. Mr. S. C. Tiwari a/w. Ms. Natasha Mangat for Respondent. h ........... igCORAM: S.C. DHARMADHIKARI AND A. A. SAYED, JJ. H DATE : 7th NOVEMBER, 2014 P.C.: This Appeal by Revenue is challenging order passed by y ba Income Tax Appellate Tribunal dated 24th February, 2012 in Income Tax Appeal No.6494/Mum/2008, that is for assessment year 2004 05. om 2] On 8th October, 2014, we had granted time to Mr. Suresh Kumar to enable him to obtain details of certain proceedings and in relation to which similar question is stated to have been dealt with. B 3] Apart from producing copy of judgment of this Court in case of Solid Containers Ltd. V/s. Deputy Commissioner of Income Tax, Special Range 1, Mumbai reported in (2009) 308 ITR 417, Mr. Suresh 1/4 ::: Downloaded on - 11/08/2015 15:44:39 ::: *2* 1.itxa959.12 Kumar was unable to point out any other case or Appeal. rt 4] Be that as it may, Mr. Suresh Kumar submits that this Appeal raises ou substantial question of law. question of law is formulated at page 4 of paper book. Mr. Suresh Kumar submits that question proceeds on C footing that applicable provision was section 41(1) of Income Tax Act and that was rightly invoked by Revenue. Alternatively and h without prejudice, even if Assessing Officer and Commissioner ig recorded conclusion that waiver of term loan was not trading liability, yet, there are other provisions under which benefit or income H arising out of such waiver could have been dealt with. Therefore, Appeal deserves admission. y 5] We are unable to agree. Assessing Officer s order dated 29th ba December, 2006 in para 3.3 records that waiver of term loan is not in present case trading liability, expenditure or loss as envisaged in section om 41(1) of Income Tax Act. Once this was footing on which Assessing Officer proceeded and only issue raised before First B Appellate Authority and Tribunal was applicability of section 141(1) of Income Tax Act, 1961, then, both held that admitted factual position does not indicate much less demonstrate and prove applicability of this provision in Income Tax Act, 1961. There was no 2/4 ::: Downloaded on - 11/08/2015 15:44:39 ::: *3* 1.itxa959.12 other provision pointed out in which loan waiver can be considered as rt income received, receivable or accrued as has been held by Assessing Officer, is conclusion reached in order of First Appellate ou Authority passed on 29th August, 2008. C 6] Before Tribunal, it was fairly argued that matter could have been looked at in light of applicability of other provisions particularly h because nature of understanding and settlement reveals that ig waiver resulted in income to Assessee. However, we do not find any reference being made to any particular provision of Income Tax H Act, 1961. argument is restricted to applicability of this provision as is apparent from reading of paras 7 to 10 of order of Tribunal. y Mr. Suresh Kumar tried his best to persuade us to admit this Appeal ba because of alternate submission canvassed and which in his opinion was not argued and considered by First Appellate Authority as well as om Tribunal. In that to derives assistance from judgment in Solid Containers (supra). Here also, we are unable to agree with Mr. Suresh Kumar because in Solid Containers Assessee had taken loan during B previous year for business purposes which was written back in relevant assessment year. That was because of consent terms arrived at with creditor of Assessee. Assessee turned around and 3/4 ::: Downloaded on - 11/08/2015 15:44:39 ::: *4* 1.itxa959.12 claimed that loan was capital receipt and hence, would not come rt within purview of section 41(1). This contention of Assessee was throughout rejected because amount was borrowed for business ou purpose and was thus, trading liability. That was subject matter of consent terms between Assessee and its creditor. terms resulted in C Assessee being relieved from obligation to pay money which was admittedly due and payable and as trading liability. That is how he h wrote back or had written off balance. That was taken as credit ig balance in his books and was being dealt with as income directly H arising out of business activity and liable to tax under section 28. Thus, in these admitted facts and circumstances that Division Bench applied principle in case of Commissioner of Income Tax V/s. T. V. y ba Sundaram Iyengar & Sons Ltd. reported in (1996) 6 SC 294 and distinguished judgment in case of Mahindra & Mahindra Ltd. om V/s. Commissioner of Income Tax reported in (2003) 261 ITR 501. We do not see how judgment in Solid Containers (supra) can render any assistance to Mr. Suresh Kumar and enable us to entertain this Appeal. B Appeal is, therefore, dismissed. No costs. (A. A. SAYED, J.) (S.C. DHARMADHIKARI, J.) wadhwas 4/4 ::: Downloaded on - 11/08/2015 15:44:39 ::: Commissioner of Income-tax-1 v. M/s. Bhor Industries Ltd