IN HIGH COURT AT CALCUTTA Special Jurisdiction (Income Tax) Original Side Present : Hon ble Justice Girish Chandra Gupta And Hon ble Justice Arindam Sinha 9th April, 2015 ITA 16 of 2009 NLC Nalco India Ltd. Vs. C.I.T IV Mr. R.N. Bajoria, Senior Advocate with Mr. Ashim Chowdhury, Advocate Mr. Akhilesh Gupta, Advocate for appellant Mr. P. Dudheria, Advocate for respondent Court :- appeal was admitted for considering following question of law pertaining to Assessment Year 2001-02. Whether finding of learned Tribunal that receipt of Rs. 1,52,16,000/- was liable to be assessed as revenue receipt by reason of having failed, inter alia, to consider and advert to and deal with various submissions made on behalf of petitioner on issue and decisions of this Hon ble Court and Special Bench of learned Tribunal? It is, however, true that assessee had also suggested second question which is as follows :- Whether Tribunal should have held that said receipt of Rs.1,52,16,000 was capital receipt not liable to tax ? 2 case of assessee is that sum of Rs. 1,52,16,000/- was received by way of compensation in consideration of assessee agreeing to discontinue business of lubricants all over World. question naturally was whether receipt is capital receipt or revenue receipt and answer to aforesaid question is necessarily dependant upon answer to question as to whether aforesaid sum was in fact received by way of compensation as contended by assessee. If answer to that question is in affirmative second question will arise whether receipt is capital receipt as contended by assessee. learned Tribunal and for that matter CIT (Appeals) and Assessing Officer have in unison abdicated their duty to answer questions indicated above. There is however some indication of view in favour of contention of assessee as would appear from order of Assessing Officer passed on 23rd March, 2004 which reads as follows :- It was restraint on trade of assessee in sense that certain monopolistic rights were created in favour of buyer. assessee was deriving large income from its own work contract. Business of lubricant constitute only minor fraction of assessee s overall business activity. So receipt was to compensate for loss of profits, which could have been otherwise derived by assessee. Since question was not considered in correct perspective and assessee has been approaching Tribunal by making applications even after appeal was presented before this Court only proper course appears to be to remand matter to learned Tribunal for decision in manner indicated above. 3 We may briefly indicate that Mr. Bajoria, learned Senior Advocate appearing for appellant submitted that receipt on account of compensation prior to lst April, 2003 was treated as capital receipt but situation underwent change when clause (va) was introduced to Section 28 which became operative on lst April, 2003 and aforesaid situation was clarified by Apex Court in case of Guffic Chem P.Ltd. vs. CIT reported in (2011) 332 ITR 602 (SC). Since we propose to remand matter we need not express any opinion. learned Tribunal shall consider matter in accordance with law. appeal is thus disposed of. (Girish Chandra Gupta, J.) (Arindam Sinha, J. ANC. NLC Nalco India Limited v. Commissioner of Income-tax-IV