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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.
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.
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.
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.
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 respect of the outstanding creditors balances represented in the assessee’s Balance Sheet.
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.
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.
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 loss, expenditure or trading liability incurred by assessee.
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
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.
