Section 41

Analysis of Section 41(1) of Income Tax Act, 1961

Income Tax - In business there are circumstances where a person might have incurred a liability but later on he need not have to pay it for one or other reason. The Income Tax Act brings to tax such liabilities which are no more payable. ...

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Can AO invoke section 41(1) merely because liability is long outstanding

Income Tax - Can A.O. could invoke section 41(1) on the pretext that liability has been long outstanding and the assessee is willingly not writing off the debts from its books? Section 41(1) is not applicable when the long outstanding liabilities have not been written off from books of accounts and continue to be reflected in the Balance […]...

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Treatment of Cessation of Liabilities – Section 41 – Case Laws

Income Tax - Section 41(1) provides for taxing any amount benefit which was obtained by a person with respect to any loss, expenditure or trading liability incurred in any earlier Assessment Years. The Section is re-produced as under...

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Making Chargeable to Tax U/s. 41(1) of Allowance/Deduction Already Made

Income Tax - The Supreme Court in CCIT vs. Kesaria Tea Co. Ltd. (2002) 20 SITC 172 (SC) has laid down that the resort to section 41(1) can be taken only if the liability of the assessee can be said to have ceased finally and there is no possibility or reviving it. Also, it has held that an unilateral action on the part of the assessee by way of writin...

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Section 41(1) No Addition without evidence of cessation of trading liability

Nama Properties Ltd. Vs DCIT (ITAT Hyderabad) - Nama Properties Ltd. Vs DCIT (ITAT Hyderabad) In the decisions relied upon by the learned Counsel for the assessee it was held that the genuineness of the trade payables or creditors has to be examined in the year in which they originate and that unless the liability becomes unenforceable or is writ...

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No Addition u/s 41(1) Merely Because Liability Outstanding for Long Period

PCIT Vs Adani Agro (P.) Ltd. (Gujarat High Court) - PCIT Vs Adani Agro (P.) Ltd. (Gujarat High Court) The issue under consideration is whether the addition made by AO under Section 41(1) of the Act on account of cessation of liability is justified in law? High Court states that, once assessee had continued to show admitted amounts as liabilities in i...

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Section 41(1) Not Applicable to Loan Waiver related to Capital Asset Purchase

DCIT Vs Rama Phosphates Ltd (ITAT Mumbai) - The issue under consideration is whether Section 41(1) is applicable in case of waiver of liability incurred in respect of purchase of capital asset?...

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Waiver of Working Capital Loan Taxable u/s 28(iv) and not u/s 41(1)

ITO Vs M/s Sri Vasavi Polymers P. Ltd. (ITAT Visakhapatnam) - The issue under consideration is whether CIT(A) is correct in deleting the addition made by AO u/s 41(1) for waiver of working capital loan and charge it u/s 28 of the Act?...

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Know-how under development is self-generated asset & hence no Capital Gain Tax

Bharat Serums And Vaccines Ltd. Vs ACIT (ITAT Mumbai) - Whether the CIT(A) is correct in holding that consideration received on assignment of know-how is chargeable to tax as Capital Gains?...

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Recent Posts in "Section 41"

Section 41(1) No Addition without evidence of cessation of trading liability

Nama Properties Ltd. Vs DCIT (ITAT Hyderabad)

Nama Properties Ltd. Vs DCIT (ITAT Hyderabad) In the decisions relied upon by the learned Counsel for the assessee it was held that the genuineness of the trade payables or creditors has to be examined in the year in which they originate and that unless the liability becomes unenforceable or is written off by the […]...

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No Addition u/s 41(1) Merely Because Liability Outstanding for Long Period

PCIT Vs Adani Agro (P.) Ltd. (Gujarat High Court)

PCIT Vs Adani Agro (P.) Ltd. (Gujarat High Court) The issue under consideration is whether the addition made by AO under Section 41(1) of the Act on account of cessation of liability is justified in law? High Court states that, once assessee had continued to show admitted amounts as liabilities in its balance sheet, the […]...

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Section 41(1) Not Applicable to Loan Waiver related to Capital Asset Purchase

DCIT Vs Rama Phosphates Ltd (ITAT Mumbai)

The issue under consideration is whether Section 41(1) is applicable in case of waiver of liability incurred in respect of purchase of capital asset?...

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Waiver of Working Capital Loan Taxable u/s 28(iv) and not u/s 41(1)

ITO Vs M/s Sri Vasavi Polymers P. Ltd. (ITAT Visakhapatnam)

The issue under consideration is whether CIT(A) is correct in deleting the addition made by AO u/s 41(1) for waiver of working capital loan and charge it u/s 28 of the Act?...

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Know-how under development is self-generated asset & hence no Capital Gain Tax

Bharat Serums And Vaccines Ltd. Vs ACIT (ITAT Mumbai)

Whether the CIT(A) is correct in holding that consideration received on assignment of know-how is chargeable to tax as Capital Gains?...

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Long outstanding liability cannot be treated as ceased liability & added back u/s 41(1)

HPL Additive Ltd Vs DCIT (ITAT Delhi)

HPL Additive Ltd Vs DCIT (ITAT Delhi) The issue under consideration is whether the addition made by A.O. u/s 41(1) treating the outstanding as cessation of liability is justified in law? During the course of scrutiny assessment proceedings, assessee was asked to furnish complete details of sundry creditors. After perusing the details, AO ...

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No addition under section 41 on waiver of loan by Government

Pr.CIT Vs SICOM Ltd (Bombay High Court)

As per section 41(1), there should be an allowance or deduction claimed by the assessee in any assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee. Then, subsequently, during any previous year, if the creditor remits or waives any such liability, then the assessee is liable to pay tax unde...

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Analysis of Section 41(1) of Income Tax Act, 1961

In business there are circumstances where a person might have incurred a liability but later on he need not have to pay it for one or other reason. The Income Tax Act brings to tax such liabilities which are no more payable. ...

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Section 41 addition cannot be made on basis of unsigned balance sheets

Rajshree Builder & Promoters Pvt. Ltd. Vs ITO (ITAT Delhi)

Addition by AO under section 41(1) as liability of ‘Trade Payables’ written off was not justified as the balance-sheets filed by assessee were neither signed by the Auditor nor by the Director and, therefore, the same were not reliable and assessee had failed to produce any confirmation to the effect that the assessee received payment...

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Surplus from assignment of loan to third party was not cessation or extinguishment of liability u/s 41(1).

Cable Corporation of India Limited Vs DCIT (ITAT Mumbai)

Surplus resulting from assignment of loan at present value of future liability was not cessation or extinguishment of liability as loan was to be repaid by the third party and therefore could not be brought to tax in the hands of the assessee under section 41(1). ...

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Taxability of loan waivers under Section 28(iv) and Section 41(1)

The Pr. Commissioner of Income Tax-12 Vs M/s. Colour Roof (India) Ltd. (Bombay High Court)

Pr. CIT Vs M/s. Colour Roof (India) Ltd. (Bombay High Court) The Supreme Court in the case of Commissioner v/ s. Mahindra and Mahindra Ltd., [2018] 404 ITR 1 has held that sine-qua-non for application of Section 41(1) of the Act, is that there should have been allowance or deduction claimed by the Assessee in […]...

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Merely because a debt has not been repaid for over three years, would not automatically imply cessation of liability

PCIT Vs Pukhraj S. Jain (Bombay High Court)

PCIT Vs Pukhraj S. Jain (Bombay High Court) It is well settled through series of judgements that merely because a debt has not been repaid for over three years, would not automatically imply cessation of liability. Exhaustion of period of limitation may prevent filing of recovery proceedings in a Court of law, nevertheless it cannot [&hel...

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Tax cannot be levied on Loan Waived under one time settlement

Sh. Jai Pal Gaba Vs ITO (ITAT Chandigarh)

Sh. Jai Pal Gaba Vs ITO (ITAT Chandigarh) The very language of the section 28(iv) speaks about the value of any benefit or perquisite arising from business or exercise of a profession. Now considering the facts and circumstances of the case, though, the loan was taken for the purpose of business but the same was […]...

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Unclaimed creditors to be added to Income u/s 41, even if the same is not written back in Income statement

M/s. West Asia Exports & Imports Vs. ACIT (Madras High Court)

M/s. West Asia Exports & Imports Vs. ACIT (Madras High Court) We know that Sec 41(1) of Income Tax Act 1961, where there is cessation of any trading liability then the benefit accruing on account of cessation of such liability will be deemed to profits and gains of business or profession whether or not such […]...

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Can AO invoke section 41(1) merely because liability is long outstanding

Can A.O. could invoke section 41(1) on the pretext that liability has been long outstanding and the assessee is willingly not writing off the debts from its books? Section 41(1) is not applicable when the long outstanding liabilities have not been written off from books of accounts and continue to be reflected in the Balance […]...

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Sec. 41(1) addition cannot be made for liabilities that had not ceased

M/s. Hindustan Vegetable Oils Corp. Ltd. Vs DCIT (ITAT Delhi)

AO was unjustified in making addition under section 41(1) on the reason that sundry creditors and other liabilities had ceased to exit as the opening balances of the liabilities were already admitted in the immediately preceding assessment years and the issue for revival was pending before BIFR because of which the creditors remain suspen...

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No cessation of trading liability for mere non-submission of confirmation from creditors

M/s. Flo Dyne Controls (India) Pvt. Ltd. Vs ITO (ITAT Mumbai)

Merely because liability was outstanding, it could not be presumed that the said liabilities had ceased to exist. Since the liability did not cease to exist and the assessee had acknowledged debt in his books, the same could not be taxed under section 41(1)....

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Gain on settlement of sales tax deferred liability not taxable

DCIT Vs Alfa Laval India Ltd. (ITAT Pune)

Alfa Laval India Ltd. case: Difference between the Net Present Value against the future liability credited by the assessee under the capital reserve account in its books of account, is a capital receipt, the addition made on account of the gain on settlement of the sales tax deferred liability not taxable...

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Tax on Liability of amalgamating company written off by amalgamated company

DCIT Vs. Babcock Borsig Ltd. (ITAT Kolkata)

DCIT Vs. Babcock Borsig Ltd. & Vice-Versa (ITAT Kolkata) Liabilities brought forward from amalgamating company written off by the amalgamated company (assessee) become its Business income- i.e. Profit chargeable to tax under section 41(1) of Income Tax Act, 1961 as the assessee had written off the liabilities after coming to a conscio...

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Treatment of Cessation of Liabilities – Section 41 – Case Laws

Section 41(1) provides for taxing any amount benefit which was obtained by a person with respect to any loss, expenditure or trading liability incurred in any earlier Assessment Years. The Section is re-produced as under...

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Posted Under: Income Tax |

Deferred tax can neither be taxed U/s. 41(1) nor U/s. 28(4) of Income Tax

CIT Vs. M/S Mcdowell & Co Ltd Now Known As United Spirits Ltd (Karnataka High Court)

CIT Vs. M/S Mcdowell & Co Ltd Now Known As United Spirits Ltd (Karnataka High Court) In the instant case, as per the scheme he was allowed to retain the sales tax as determined by the competent authority and pay the same 15 years thereafter. The tax collected was deemed to have been paid and, […]...

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Waiver of loan for acquiring capital assets not amount to cessation of trading liability

Commissioner Vs Mahindra And Mahindra Ltd. (Supreme Court of India)

Waiver of loan for acquiring capital assets could not be taxed as perquisites under section 28(iv) since receipts were in the nature of cash or money. Section 41(1) of the Income Tax Act does not apply since waiver of loan does not amount to cessation of trading liability. It is a matter of record that the assessee had not claimed any de...

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No Cessation of liability if Amount forfeited is subject matter of civil suit and cannot be taxed

Bharat Enterprises Vs ACIT (ITAT Mumbai)

Where amount forfeited by assessee against cancellation of booking of flat was subject-matter of civil suit, it could not be said that there was cessation of liability so as to tax such amount as assessee’s income....

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Addition U/s. 41(1) cannot be made for Amount not paid due to long pending dispute

Pyramid Consulting Engineers (P.) Ltd. Vs DCIT (ITAT Mumbai)

Where due to pending disputes with debtors, sales commission could not be paid to agents for longer period, taxation of such liability payable to agents under section 41(1) was not justified....

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Section 41(1) not applies if amount was not claimed in earlier year

Pr. CIT Vs Gujarat State Co-Op. Bank Ltd.(Gujarat High Court)

Section 41(1) of the Act in plain terms provides for adding back of an allowance or deduction which has been made by the assessee in any year in respect of loss expenditure or trading liability and subsequently during any previous year such liability ceases. The primary requirement of applicability of this provision therefore is where an ...

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Section 41(1) cannot be invoked by revenue without showing that such liability had, in fact, ceased to exist

Pr. CIT Vs. Dharmendra Jagdishbhai Dubal (Gujarat High Court)

(1) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in deleting the addition of Rs. 23,04,369 by considering the same to be service tax? (2) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in deleting the addition of Rs. 53,...

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Non recovery of debtors for almost 3 years is sufficient reason to write off and claim as revenue loss

General Capital and Holding Company Pvt. Ltd Vs. Income Tax Officer (ITAT Ahmedabad)

In the case between General Capital and Holding Company Pvt. Ltd vs Income Tax Officer, Ahmedabad bench of Income Tax Appellate Tribunal (ITAT) held that deduction under Section 80G of the Income Tax Act 1961 is allowable in the year of actual payment as well as that of getting the necessary donation receipt....

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Section 41(1) not apples if loan waiver not amounts to cessation of trading liability

The Commissioner Vs Mahindra and Mahindra Ltd. (Supreme Court of India)

These appeals have been filed against the impugned judgment and order dated 29.01.2003 passed by the High Court of Judicature at Bombay in R.A.No.1561 (Bom)/1982 and R.A.No.5161/B/80 whereby the Division Bench of the High Court while giving answers to the Reference Applications filed by the Respondent as well as the Revenue, confirmed cer...

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Waiver of loan taken on capital account cannot be taxed U/s. 41(1)

Shrm Food & Allied Services (P) Ltd. Vs ITO (ITAT Mumbai)

Total dues payable by the Bank consisted of principal component and interest component. The principal Component being a loan in respect of which no deduction, benefit or loss was either claimed or allowed, was transferred to Capital Reserve Account and interest component was duly credited to the Profit and Loss Account and also offered to...

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Cessation of liability U/s. 41(1) cannot be presumed, merely because liability remained unpaid for a period of 3 years

ITO Vs. Thadaram Khaldas Tolani (ITAT Mumbai)

Merely on the reasoning that liability in respect of some of the sundry creditors have remained outstanding for about three years the assessing officer has concluded that they have to be treated as income of the assessee in the impugned assessment year as they have ceased to exist as per section 41(1) of the Act. ...

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Section 41(1) includes remission or cessation of any liability by a unilateral act

DCIT vs Sonodyne Television Co. Ltd.(ITAT Kolkata)

Loss or expenditure or some benefit in respect of any such trading liability by way of remission or cessation shall be includible by a unilateral act by the first person who is assessee, i.e., debtor. There is no stipulation of such unilateral act by the creditor. ...

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Large amount spent on repair and maintenance having no enduring benefit allowable as expense

Dy. CIT Vs. Kalyanapur Cement Ltd. (ITAT Kolkata)

Expense was classified under the head major repair and maintenance on the ground that the large expense was spent on repair and maintenance but the fact is that there was no enhancement in the capacity of the plant and machinery as well as no increase in the efficiency....

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Addition U//s 41(1) not justified for creditors paid in subsequent years

Satpal & Sons (HUF) Vs ACIT (ITAT Delhi)

This is an appeal filed by the assessee against the order dated 7-11-2014 of learned Commissioner (Appeals)-XXVIII, Delhi for the assessment year 2011-12. In this appeal, the assessee has also filed a stay petition seeking stay of the outstanding demand. ...

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No cessation of liability merely because amount is outstanding for several years

The Income Tax Officer Vs M/S. Vikram A. Pradhan (ITAT Mumbai)

Amounts shown as liabilities / Outstanding in the Balance Sheet cannot be deemed to be "cessation of liability" under Section 41(1) of Income Tax Act, 1961 merely because the liabilities are outstanding for several years. Assessing Officer has to bring on record any material evidence to establish that there was cessation of liability in ...

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Surplus/Savings arising on prepayment of deferred sales tax not taxable u/s (iv)

Grindwell Norton Ltd. vs. Addl. CIT (ITAT Mumbai)

The ITAT Mumbai in the above cited case held that the surplus/savings arising on prepayment of deferred cannot be taxed u/s 28(iv) as by making prepayment of a future liabity at present value no monetary benefit arises to assessee as the savings it made by prepayment would get set off against the interest it loses by making prepayment....

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Waiver of loan taken for acquiring a capital asset is taxable

CIT Vs Ramaniyam Homes (P.) Ltd. (Madras High Court)

The waiver of a portion of the loan would certainly tantamount to the value of a benefit. This benefit may not arise from the business of the assessee. But, it certainly arises from business. The absence of the prefix “the” to the word “business” makes a world of difference....

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Sec. 41(1)-Cessation of liability on capital account not taxable

Principal CIT Vs M/s Tinna Finex Ltd. (Delhi High Court)

The loan transactions were on the capital account and the writing off the loan was also on capital account and did not find place in the Profit and Loss Account. Apart from this it has been found as a matter of fact that the assessee had not got the benefit of any allowance or deduction in the assessment for any prior year in respect of ...

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Mere Lien over payment due to pending dispute does not result in cessation of trading liability u/s 41(1)

The ITO Vs Shri Radhey Shyam Agarwal (ITAT Jaipur)

The ITO Vs Shri Radhey Shyam Agarwal (ITAT Jaipur) Once, there is an impending dispute between assessee and M/s. Laxmi Carpet Enterprises then it cannot be assumed that liability for payment has ceased...

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In absence of any unilateral or bilateral w/off, no addition sustainable on account of cessation of liability

M/s Brothers Pharma Pvt. Ltd. Vs ITO (ITAT Jaipur)

ITAT Jaipur held In the case of M/s Brothers Pharma Pvt. Ltd. vs. ITO that the case laws referred by the CIT (A) are squarely distinguishable on the ground that there was a written off either by the assessee or bilaterally...

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No Penalty for Doubtful addition U/s. 41(1) of Income Tax Act, 1961

Smt. Sumitra Devi Agarwal Vs ITO (ITAT Jaipur)

Smt. Sumitra Devi Agarwal Vs. ITO (ITAT Jaipur)- The AO has questioned the genuineness of the liability and in absence of the requisite confirmation, has held the same to be a bogus liability. Where the liability itself has been held to be a bogus liability, where is the question of remission or cessation thereof. ...

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Bogus Purchase- Mere Adjustment in Purchase without disturbing Sales not Justified

ACIT Vs Advert Communication (ITAT Delhi)

ACIT vs Advert Communication ( ITAT Delhi) 1.If addition has to be made for bogus purchases then sales should also be disturbed ; 2.Until and unless both parties don’t confirm the cessation of liability then addition cannot be made u/s 41(1); 3....

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Cessation of loan liability taken for purchase of capital assets is capital receipt

CIT Vs V. S. Dempo & Company Ltd. (Goa High Court)

In the case of The Commissioner of Income Tax vs. V. S. Dempo & Company Ltd, Goa High Court has held that the principal amount of loan taken for purchase of capital assets was on capital account and therefore on cessation of its repayment there is no occasion to apply Section 41 (1) of the Act. And resultant income should only be treated ...

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If creditors are found bogus then addition can be made u/s 68 or u/s 41(1)

Perfect Paradise Emporium Pvt. Ltd. Vs ITO (ITAT Delhi)

ITAT Delhi has held in the case of Perfect Paradise Emporium Pvt. Ltd vs. ITO that If creditors are found bogus then the amount can be added back to income u/s 68 as unexplained cash credits or us 41(1) as business income....

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Making Chargeable to Tax U/s. 41(1) of Allowance/Deduction Already Made

The Supreme Court in CCIT vs. Kesaria Tea Co. Ltd. (2002) 20 SITC 172 (SC) has laid down that the resort to section 41(1) can be taken only if the liability of the assessee can be said to have ceased finally and there is no possibility or reviving it. Also, it has held that an unilateral action on the part of the assessee by way of writin...

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Mere cessation of liability not results into fit case of sec. 41(1) of Income-tax Act

ITO Vs M/s Tinna Finex Ltd. (ITAT Delhi)

Section 41 (1) of the act provides treating of trading liability on cessation as deemed profit in business or profession. But section has to apply when there is benefit upon such cessation in form of any remission....

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S. 41(1) Merely because liabilities were outstanding for last many years, it cannot be said that said liabilities ceased to exist

ACIT Vs Gopal Fabrics (ITAT Ahmedabad)

The Tribunal was justified in taking the view that the assessee had continued to show the admitted liabilities in its balance sheet, the same could not be treated as cessation of liabilities. Merely because the liabilities were outstanding for last many years, it could not be inferred that the said liabilities has ceased to exist. ...

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Unclaimed Liabilities Not Taxable As Income Even If Creditors Not Traceable or Non-Genuine

Commissioner of Income Tax Vs Bhogilal Ramjibhai Atara (Gujarat High Court at Ahmedabad)

Section 41(1) of the Act would apply in a case where there has been remission or cessation of liability during the year under consideration subject to the conditions contained in the statute being fulfilled. Additionally, such cessation or remission has to be during the previous year relevant to the assessment year under consideration. ...

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Unclaimed liabilities Assessable As Income Despite No Write-Back on failure to prove genuineness

Income Tax Department Vs. Shri Shailesh D. Shah (ITAT Mumbai)

From the facts of the case it reveals that not only the existence of outstanding liability of labour charges for so many years is improbable in the normal course of business but the assessee has also failed to give any evidence regarding the genuineness of the creditors, ...

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Liability Paid subsequently cannot be added to the income of the Assessee

Mr. Yusuf R Tanwar Vs ITO (ITAT Mumbai)

If the assessee has really repaid the amount to the creditors then it will be injustice to him, if the amount is added to his income. Under such circumstances, we remand this case back to the file of the Assessing Officer for fresh assessment....

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No addition u/s 41(1) merely because some liabilities are outstanding at year end

Shri Ahmedabad Flexible Tube Mfg. & Yarn Proc. Co. P. Ltd. Vs. ITO (ITAT Ahmedabad)

Liabilities are still outstanding in the balance sheet as on the last date of relevant accounting period in the statement of account submitted with the department. There is no material on record to prove that the said liabilities have ceased to exist. ...

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Whether liability outstanding for several years amounts to cessation of liabilities on account of efflux of time?

CIT Vs Jain Esports Pvt. Ltd. (Delhi High Court)

In order to attract the provisions of Section 41(1) of the Act, it is necessary that there should have been a cessation or remission of liability. As held by the Bombay High Court, in the case of J. K. Chemicals Ltd. (supra), cessation of liability may occur__ either by thereason of the liability becoming unenforceable in law by the credi...

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No addition u/s 41(1) in respect of balance of creditors appearing in books of accounts at the end of relevant year

Income Tax Officer Vs. Shri Jagmohansingh G Dhiman (ITAT Ahmedabad)

In view of the fact that the enabling conditions of sec.41(1) are not fulfilled in this case, the A.0. had not brought any material on record to indicate that the appellant had obtained any benefit against the above said liabilities and these liabilities are still existing at the end of relevant assessment year in the books of accounts of...

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Section 41(1) applies to Unpaid dues, whose recovery is time barred

Commissioner of Income Tax Vs Chipsoft Technology Pvt Ltd (Delhi High Court)

Time-barred unpaid dues - Unpaid dues of employees, whose recovery is time barred, cease to be employer's liability and have to be added under section 41(1)...

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No addition U/s. 41(1) If assessee proves identity of creditors

CIT Vs Millenium Automations & Systems Ltd. (Delhi High Court)

The Assessing Officer had asked the respondent-assessee, as to why Rs. 1,63,37,365/- should not be taxed under Section 41(1) of the Act on account of cessation of liability payable to sundry creditors. The assessee on the same date Was asked to furnish details with regard to the change in address and to furnish the proof of payment made t...

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