ITO, Kota V. CHANDI RAM, Kota

ITA 11/JPR/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5567 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 05-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRITHVIRAJ MEENA CIT DHK
• Keywords: Business income
• Section: 143(3); 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 11/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER, WARD 1(1), KOTA CUKE VS. SHRI CHANDI RAM PROP. CHANDI RAM & CO. A-20, VALLABH NAGAR, KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABIPR 6234 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SIDHARTH RANKA (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI PRITHVIRAJ MEENA (ADDL. CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20.02.2017 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT: 28/02/2017. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) DATED 23.10.2014 WHEREIN FOLLOWING GROUNDS OF APPEA L HAVE BEEN TAKEN: (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 91,59,305/- M ADE BY THE AO ON ACCOUNT OF ARBITRATION RECEIPTS. (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.7,55,642/- MAD E BY THE AO ON ACCOUNT OF ACCRUED INTEREST ON FDRS NOT DECLARED A S INCOME BY THE ASSESSEE. 2. IN RESPECT OF GROUND NO. 1, THE BRIEF FACTS OF T HE CASE ARE THAT FOUR ARBITRATION AWARDS CAME TO BE PASSED IN FAVOUR OF T HE ASSESSEE WITH RESPECT TO ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 2 DISPUTE BETWEEN THE ASSESSEE AND THE STATE OF RAJA STHAN, BY THE ARBITRATOR, SHRI R.C. BHANDARI DURING FINANCIAL YEAR 2000-2001 . THE STATE OF RAJASTHAN FILED OBJECTIONS BEFORE THE LD. DISTRICT& SESSIONS JUDGE, JAIPUR CITY, JAIPUR WHICH WERE REJECTED. AGAINST THE ORDER OF THE LD. DISTRIC T & SESSIONS JUDGE, JAIPUR CITY, JAIPUR, THE STATE OF RAJASTHAN FILED ANOTHER APPEAL BEFORE THE HONBLE RAJASTHAN HIGH COURT ALONGWITH STAY PETITION. AS AN INTERIM RELIEF, THE HONBLE RAJASTHAN HIGH COURT VIDE THEIR ORDER DATED 27.10.2 005 DIRECTED THE STATE OF RAJASTHAN TO RELEASE 50% OF THE AMOUNT AWARDED IN FAVOUR OF THE ASSESSEE RESPONDENT, SUBJECT TO SUBMISSION OF EQUAL AMOUNT O F BANK GUARANTEE BY THE ASSESSEE RESPONDENT. EVEN TILL DATE THE MATTER IS P ENDING ON MERITS BEFORE THE HONBLE RAJASTHAN HIGH COURT. THE ASSESSEE HAS FURN ISHED BANK GUARANTEE EQUIVALENT OF RS. 9,159,305/- AND THE AMOUNT WAS RE LEASED TO THE ASSESSEE. 2.1 THE ASSESSEE HAS SHOWN ARBITRATION RECEIPTS IN HIS BOOKS OF ACCOUNTS UNDER THE HEAD CURRENT LIABILITIES AND HAS NOT CR EDITED THE SAME IN THE PROFIT/LOSS ACCOUNT. AS PER THE ASSESSING OFFICER, THE ARBITRATION RECEIPTS CANNOT BE TREATED AS LIABILITY TILL THE ORDER OF SU PREME COURT IS RECEIVED AGAINST THE ASSESSEE AND THE SAME RECEIPTS WAS ACCORDINGLY TREATED AS INCOME OF THE ASSESSEE AND BROUGHT TO TAX. AS PER THE ASSESSING OFFICER, THE INCOME RECEIVED IN THE FORM OF CONTRACT RECEIPTS CANNOT BE TERMED AS LIABILITY IN ANY WAY. AT THE MOST IF THE CLAIM OF PENDENCY APPEAL IN HIGH C OURT IS TRUE, EVEN THEN THESE RECEIPTS CAN BE TERMED AS PROVISION FOR CONTI NGENT LIABILITY AND THE PROVISION OF CONTINGENT LIABILITY IS ALSO NOT ALLO WABLE AS PER INCOME TAX ACT. THEREFORE, CONSIDERING ALL THE FACTS AND CIRCUMSTAN CES OF THE CASE, THE CONTRACT RECEIPTS OF RS. 91,59,305/- RECEIVED THROUGH ARBITR ATION WAS TREATED AS INCOME OF THE ASSESSEE AND BROUGHT TO TAX. ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 3 2.2 BEING AGGREIVED, THE ASSESSEE CARRIED THE MATTE R IN APPEAL BEFORE THE LD CIT(A). THE LD CIT(A) HELD THAT THE FACTS IN THE I NSTANT CASE ARE IDENTICAL TO THE FACTS BEFORE THE COORDINATE BENCH IN AY 2004-05 AND FOLLOWING THE JUDGEMENT OF COORDINATE BENCH, HE HELD THAT THE AMOUNT WAS NO T UNDER THE ABSOLUTE OWNERSHIP OF THE ASSESSEE AND AO WAS NOT JUSTIFIED IN TREATING THE SAME AS INCOME. THE AO WAS THEREFORE DIRECTED TO DELETE TH E ADDITION OF RS. 91,59,305/-. THE REVENUE IS IN APPEAL AGAINST THE SAID ORDER OF LD CIT(A) BEFORE US. 2.3 WE NOW REFER TO THE DECISION OF THE COORDINATE BENCH IN ITA NO. 1003/JP/2007 DATED 31.03.2008 FOR AY 2004-05 IN ASS ESSEES OWN CASE WHICH HAS BEEN RELIED UPON BY THE LD CIT(A), THE OPERATIV E PART THEREOF READS AS UNDER: CONSIDERING THE ABOVE SUBMISSIONS IN VIEW OF THE D ECISION RELIED UPON BY THE LD. AR, WE FIND SUBSTANCE IN THE CONTENTION OF THE LD. AR THAT FURNISHING OF SECURITY OF THIRD PARTY OR THE ASSES SEE OR THE BANK GUARANTEE DOES NOT MAKE DIFFERENCE IN THE NATURE OF RECEIPT. THE FURNISHING OF SOLVENT SECURITY DOES NOT TANTAMOUNT TO PAYMENT OF TAX. IN THE PRESENT CASE THE AWARD GRANTED BY THE ARBITRATO R ON 20.10.1999 WAS OBJECTED BY THE STATE GOVERNMENT, WHICH WAS REJECTE D BY THE LD. ADDITIONAL DISTRICT JUDGE ON 07.08.2003 WITH INTERE ST @ 6PERCENT PER ANNUM. THE STATE GOVERNMENT PREFERRED APPEAL ON 14 .11.2003, THE ASSESSEE REQUESTED THE HONBLE HIGH COURT FOR ORDER TO EXECUTE THE DECREE. AFTER CONSIDERING THE OBJECTIONS RAISED B Y THE STATE GOVERNMENT THE HONBLE HIGH COURT DIRECTED THE STATE TO DEPOSI T RS. 35,83,978/- WHICH WAS COMPLIED WITH BY STATE GOVERNMENT ON 10.1 2.2003, THE HONBLE HIGH COURT DIRECTED ON 13.12.2003 FOR PAY MENT TO THE ASSESSEE THE AWARDED AMOUNT AFTER FURNISHING OF SOLVENT SECU RITY AD UNDERTAKING ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 4 THAT THE FINAL ORDER OF THE HONBLE HIGH COURT TO B E ABIDED BY THE ASSESSEE. THE ASSESSEE FURNISHED SOLVENT SECURITY O F SHRI HITESH KUMAR. TITLE DEEDS OF THE PROPERTY WERE FILED WITH VALUAT ION OF THE PROPERTY WHICH WAS VERIFIED. STATEMENT OF SHRI HITESH KUMAR WAS RECORDED ON OATH THAT HE WOULD NOT SALE OR MORTGAGE OR TAKE L OAN ON THE SAID PROPERTY. AMOUNT WAS RECEIVED IN MARCH, 2004. TH E ASSESSEE CONSIDERED IT AS CURRENT LIABILITY IN SCHEDULE CW ITH THE NARRATION RBITRATION RECEIPT FROM XEN, IRRIGATION, BUNDI RS . 35,83,978/-.THE AO ASSESSED THE AMOUNT AS BUSINESS INCOME AND NOT AS C APITAL GAIN. ON PERUSAL OF DECISION IN THE CASE OF HINDUSTAN HOUSIN G AND LAND DEVELOPMENT TRUST LTD. (SUPRA) WE FIND THAT THEREIN ARBITRATOR HAS ENHANCED THE ORIGINAL AWARD AMOUNT BY 5,13,624/- W ITH INTEREST @ 5% PER ANNUM AND FURTHER RECURRING COMPENSATION AT RS. 6272/- PER MONTH. THE STATE APPEALED TO HONBLE HIGH COURT. DURING T HE PENDENCY THE STATE DEPOSITED THE AMOUNT AND THE ASSESSEE WAS PER MITTED TO WITHDRAW ON FURNISHING SECURITY. THE ASSESSEE CREDITED THE RECEIPT OF SUSPENSE ACCOUNT. THE ASSESSEE COMPANY WAS CARRYING ON BU SINESS OF DEALING IN LAND, MAINTAINED ACCOUNTS ON MERCANTILE SYSTEM, AMO UNT ASSESSED AS BUSINESS INCOME AND NOT BY WAY OF CAPITAL GAIN. BE FORE THE HONBLE SUPREME COURT THE ISSUE RAISED WAS WHETHER COMPENS ATION PAYABLE TO THE ASSESSEE ACCRUE OR ARISE DURING THE ASSESSMENT YEAR 1956-57. THE HONBLE SUPREME COURT WAS PLEASED TO HOLD THAT IN THE PRESENT CASE, ALTHOUGH THE AWARD WAS MADE BY THE ARBITRATOR ON 2 9.07.1955, ENHANCING THE AMOUNT COMPENSATION PAYABLE TO THE AS SESSEE THE ENTIRE AMOUNT WAS IN DISPUTE IN THE APPEAL FILED BY THE STATE GOVERNMENT. INDEED THE DISPUTE WAS REGARDED BY THE COURT AS REA L AND SUBSTANTIAL BECAUSE THE ASSESSEE WAS NOT PERMITTED TO WITHDRAW THE SUM OF RS. ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 5 7,36,691/- DEPOSITED BY THE STATE GOVERNMENT ON AP RIL 25, 1956 WITHOUT FURNISHING SECURITY BOND FOR REFUNDING THE AMOUNT IN THE EVENT OF THE APPEAL BEING ALLOWED. THERE WAS NO ABSOLUTE RIGHT T O RECEIVE AT THAT STAGE. IF THE APPEAL WAS ALLOWED IN ITS ENTIRETY, THE RIGHT TO PAYMENT OF ENHANCED COMPENSATION WOULD HAVE FALLEN ALTOGETHER , HELD HONBLE SUPREME COURT. IT WAS FURTHER HELD THAT THE VERY FOUNDATION OF THE CLAIM MADE BY THE ASSESSEE WAS IN SERIOUS JEOPARDY AND NO THING WOULD BE DUE IF THE APPEAL WAS DECIDED AGAINST THE ASSESSEE. T HE ENHANCED COMPENSATION ACCRUED TO AN ASSESSEE ONLY WHEN THE COURT ACCEPTED CLAIM AND NOT WHEN THE LAND WAS TAKEN OVER BY THE GOVERNMENT, IT WAS HELD. THE FACTS IN THE CASE OF HINDUSTAN HOUSING A ND LAND DEVELOPMENT TRUST LTD. (SUPRA) ARE ALMOST SAME AS IN THE CASE O F PRESENT ASSESSEE, HENCE THE RATIO LAID DOWN BY THE HONBLE SUPREME CO URT THEREIN IS FULLY APPLICABLE IN THE ISSUE IN THE PRESENT CASE. LIKE WISE IN THE CASE OF SIDDHESHWAR SAHAKARI SAKHAR KARKHANA LTD. VS. CIT (SUPRA) IT WAS HELD THAT DEDUCTIONS MADE/DEPOSITS RECEIVED FROM MEMBE RS, TO BE UTILISED BY THE ASSESSEE, REFUNDABLE TO MEMBERS ARE NOT TRAD ING RECEIPTS AND LIABLE TO TAX. IT CARRIES A LIABILITY TO RETURN ON FUTURE DATES. IN THE CASE OF CIT VS. BAVLA GOPALAK VIVIDH KARYAKARISAHAKAKRI MA NDI LTD. 253 ITR97 (GUJ) IT WAS HELD THAT WHEN SUBSIDY WAS THE SUBJECT MATTER OF DISPUTE IN THE PENDING APPEAL, NO INCOME HAD ACCRUED TO THE AS SESSEE. THE FACTS IN THE CASE OF SOMAIYA ORGANICS (INDIA)LTD AND ANOTH ER VS. STATE OF UTTAR PRADESH AND ANOTHER 251ITR 20(SC) RELIED UPON BY TH E LD. CIT(A) ARE DISTINGUISHABLE BECAUSE IN THAT CASE THERE WAS NO A NY ORDER FOR FURNISHING OF THE BANK GUARANTEE BY THE ASSESSEE TH EREIN. THE ISSUE THEREIN WAS AS TO WHETHER IT CAN BE SAID THAT THE F URNISHING OF BANK GUARANTEE FOR WHOLE OR PART OF THE DISPUTED EXCISE DUTY PURSUANT TO AN ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 6 ORDER OF THE COURT IS EQUIVALENT TO PAYMENT OF THE AMOUNT OF EXCISE DUTY. IT WAS HELD THAT THE AMOUNT OF DISPUTED AMOUNT OR D UTY I.E. SECURED BY A BANK GUARANTEE CANNOT BE HELD TO BE PAYMENT BY THE REVENUE HENCE THERE IS NO QUESTION OF ITS REFUND. THUS THE DECI SION IN THE CASE OF SOMAIYA ORGANICS (INDIA) LTD. AND ANOTHER VS. STAT E OF UTTAR PRADESH AND ANOTHER (SUPRA) IS NOT HELPFUL TO THE REVENUE. THE LD. CIT(A) IN OUR VIEW WAS THEREFORE NOT JUSTIFIED IN UPHOLDING THE ACTION OF THE AO IN TREATING THE AMOUNT RS. 35,83,978/- AS INCOME OF TH E ASSESSEE FOR THE YEAR AND ADDITION THEREOF IN THE INCOME OF THE ASSE SSEE. THE RECEIPTS IN THE HANDS OF THE ASSESSEE WAS UNDISPUTED SUBJECT TO THE OUTCOME OF THE APPEAL PREFERRED BY THE STATE GOVERNMENT AGAINST T HE AWARD. IN OTHER WORDS IN CASE STATE GOVERNMENT SUCCEEDS IN APPEAL P ENDING ADJUDICATION BEFORE THE HONBLE HIGH COURT THE ASSESSEE WILL HAV E TO RETURN THE AMOUNT , THUS THE AMOUNT WAS NOT UNDER THE ABSOLUT E OWNERSHIP OF THE ASSESSEE. THE ASSESSEE WAS RATHER TRUSTEE OF THE SAID AMOUNT PENDING ADJUDICATION OF APPEAL PREFERRED BY THE STATE GOVE RNMENT AGAINST THAT DISPUTED AMOUNT . THE LOWER AUTHORITIES WERE THUS NOT JUSTIFIED IN TREATING THE AMOUNT AS INCOME OF THE ASSESSEE AND MAKING ADDITION THEREOF. THE ORDERS OF THE LOWER AUTHORITIES IN TH IS REGARD ARE THUS SET ASIDE. THE ADDITION OF RS. 35,83,978/- SHOWN AS CURRENT LIABILITY BY THE ASSESSEE IS ACCORDINGLY DIRECTED TO BE DELETED . THIS GROUND OF APPEAL IS ACCORDINGLY ALLOWED. 2.4 THE LD. AR SUBMITTED THAT THE HONBLE ITAT IN A SSESSEES OWN CASE IN ITA NO. 1003/JP/2007 VIDE ORDER DATED 31.03.2008 FOR TH E ASSESSMENT YEAR 2004-05 UNDER SIMILAR & IDENTICAL FACTS AND CIRCUMS TANCES WHEREIN ALSO THE ASSESSEE HAD RECEIVED RS. 3,583,978/- WITH A CONDIT ION OF FURNISHING OF ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 7 EQUIVALENT VALUE OF BANK GUARANTEE TOWARDS ARBITRAT ION AWARD HAD DELETED THE ADDITION MADE IN A DETAILED ORDER. THE LD AR FURTHER SUBMITTED THAT THE HONBLE RAJAST HAN HIGH COURT HAD PERMITTED THE ASSESSEE RESPONDENT TO WITHDRAW THE A MOUNT WITH A CONDITION OF FURNISHING OF THE BANK GUARANTEE OF EQUAL AMOUNT . IF THE INTERIM ORDER WERE TO BE ULTIMATELY UPSET BY THE HONBLE COURT, THE ST ATE GOVERNMENT WOULD BECOME ENTITLED TO ENCASH THE BANK GUARANTEE AND RE COVER BACK THE AMOUNT PAID TO THE ASSESSEE RESPONDENT WITH INTEREST. THUS THE ASSESSEE RESPONDENT SUBMITS THAT THE SAID RECEIPTS ARE NOT TAXABLE IN T HE YEAR OF RECEIPT SINCE THE SAME DID NOT ACCRUE TO THE ASSESSEE AS INCOME. IT WAS AN AD-HOC AND INTERIM PAYMENT, PENDING FINAL ADJUDICATION ON MERITS. IT WAS FURTHER SUBMITTED THAT THE AMOUNT RECEIVED F ROM THE STATE OF RAJASTHAN IS NOT INCOME OF THE ASSESSEE AND IT CANNOT BE TAKE N INTO ACCOUNT AS RECEIPT. IT WOULD HAVE BEEN TREATED AS INCOME/RECEIPT IF IT WOU LD HAVE BEEN UNCONDITIONAL. THE ASSESSEE HAS NOT BECOME FREE OW NER OF THE AMOUNT RECEIVED BY IT. REVENUE INCLUDES ONLY THE GROSS IN FLOWS OF ECONOMIC BENEFITS RECEIVED AND RECEIVABLE BY THE ENTITY ON ITS OWN A CCOUNT. AMOUNTS COLLECTED ON BEHALF OF THIRD PARTIES ARE NOT ECONOMIC BENEFIT S WHICH FLOW TO THE ENTITY AND DO NOT RESULT IN INCREASE IN EQUITY. THEREFORE, THEY ARE EXCLUDED FROM REVENUE. IT WAS FURTHER SUBMITTED THAT WHEN THE OUTCOME OF A TRANSACTION INVOLVING THE RENDERING OF SERVICES CAN BE ESTIMATED RELIABLY, RE VENUE ASSOCIATED WITH THE TRANSACTION SHALL BE RECOGNIZED BY REFERENCE TO THE STAGE OF COMPLETION OF THE TRANSACTION AT THE END OF THE REPORTING PERIOD. TH E OUTCOME OF A TRANSACTION CAN BE ESTIMATED RELIABLY WHEN ALL THE FOLLOWING CO NDITIONS ARE SATISFIED: ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 8 A. THE AMOUNT OF REVENUE CAN BE MEASURED RELIABLY; B. IT IS PROBABLE THAT THE ECONOMIC BENEFITS ASSO CIATED WITH THE TRANSACTION WILL FLOW TO THE ENTITY; C. THE STATE OF COMPLETION OF THE TRANSACTION AT TH E END OF THE REPORTING PERIOD CAN BE MEASURED RELIABLY; AND D. THE COSTS INCURRED FROM THE TRANSACTION AND THE COSTS TO COMPLETE THE TRANSACTION CAN BE MEASURED RELIABLY. IN THE INSTANT CASE THE LD. ASSESSING OFFICER HAS N OWHERE STATED THAT AMOUNT RECEIVED BY THE ASSESSEE WILL EVENTUALLY FLOW TO T HE ASSESSEE. WITHOUT HOLDING THE SAME IT CANNOT BE TREATED AS REVENUE OF THE ASS ESSEE. THE ASSESSEE IS LIABLE TO RECOGNIZE A FINANCIAL ASS ET TO THE EXTENT THAT IT HAS AN UNCONDITIONAL CONTRACTUAL RIGHT TO RECEIVE CASH OR ANOTHER FINANCIAL ASSET FROM OR AT THE DIRECTION OF THE RECEPIENT FOR SERVICES R ENDERED BY THE ASSESSEE. HAD IT BEEN SO, THE STATE OF RAJASTHAN WOULD HAVE LITTL E, IF ANY, DISCRETION TO AVOID THE PAYMENT. HOWEVER, IN THE INSTANT CASE, THE STAT E OF RAJASTHAN VEHEMENTLY DENIES ITS LIABILITY TO PAY THE AMOUNT DEMANDED BY THE ASSESSEE RESPONDENT, ADJUDICATED BY THE ARBITRATOR AND THE LEARNED DISTR ICT & SESSIONS JUDGE. WE HAD REQUESTED THE LD. ASSESSING OFFICER TO ENQUIRE FROM PWD ( STATE OF RAJASTHAN) WHETHER THEY HAVE RELEASED THEIR RIGHT O F RECOVERY AGAINST THE AMOUNT OF RS. 9,159,305/- AGAINST THE ASSESSEE RE SPONDENT. THE LD. ASSESSING OFFICER FOR THE REASONS BEST KNOWN TO HIM CHOSE NOT TO INQUIRE AND IGNORED THE SAME. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD REQU ESTED THE LD. ASSESSING OFFICER TO LET HIM KNOW UNDER WHICH PROVISION OF LA W WILL THE ASSESSEE BE ELIGIBLE TO GET REFUND OF THE TAX SOUGHT TO BE CHAR GED ON SUCH RECEIPTS IF ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 9 SUBSEQUENTLY IN THE INSTANT CASE ON MERITS ULTIMATE LY THE HONBLE RAJASTHAN HIGH COURT DECIDES THE ARBITRAL AWARD AGAINST THE A SSESSEE AND THE AMOUNT IS RECOVERED BACK FROM THE ASSESSEE. THE LD. ASSESSING OFFICER FOR THE REASONS BEST KNOWN TO HIM CHOSE TO IGNORE AND DID NOT REPL Y TOWARDS THE SAME. BY PASSING SUCH ORDER FOR RELEASE OF FUNDS SUBJECT TO FURNISHING OF BANK GUARANTEE, THE HONBLE RAJASTHAN HIGH COURT HAS SIM PLY ENSURED RELEASE OF 50% OF THE ARBITRATION AMOUNT TO THE ASSESSEE RESPO NDENT AND AT THE SAME TIME PROTECTED THE INTEREST OF STATE OF RAJASTHAN SO AS TO AVOID FUTURE RECOVERY ISSUES, IN CASE, THE STATE OF RAJASTHAN SU CCEEDS ON MERITS. AS SUBMITTED HEREINABOVE, A BANK GUARANTEE IS A NON -FUND BASED LIMIT SANCTIONED BY THE BANK; HOWEVER NO ACCOUNTING ENTRY IS PASSED FOR BANK GUARANTEE OBTAINED FROM THE BANK. BANK GUARANTEE HA S BEEN ISSUED BY THE ASSESSEE AGAINST SUBMISSION OF LIQUID SECURITY BY THE ASSESSEE WHICH CAN BE ENCASHED ANY TIME BY THE BANK. THUS AGAINST RECEIP T OF FUNDS; THE ASSESSEE RESPONDENT HAS GUARANTEED 100% SAFETY TO THE STAT E OF RAJASTHAN (PWD) WHICH HAS ACCORDINGLY RELEASED THE EQUIVALENT FUNDS TO THE ASSESSEE RESPONDENT. THE ACCOUNT THOUGH RECEIVED BY THE ASSESSEE, CANNOT BE SAID TO HAVE BEEN APPROPRIATED BY THE ASSESSEE AS ITS OWN. THE RECEIP T DID NOT ACCRUE TO THE ASSESSEE. IT WAS LIABLE TO BE REFUNDED TO THE STAT E OF RAJASTHAN IN THE EVENT OF THE JUDGMENT OF RAJASTHAN HIGH COURT WERE TO GO AG AINST THE ASSESSEE AND, THEREFORE, IT WAS LIABILITY OF THE ASSESSEE AND NOT A TRADING RECEIPT. THE ARBITRATION AWARD AMOUNT RECEIVED BY THE ASSES SEE RESPONDENT WERE A LIABILITY, A DEBT, TRUST MONEY, LIABLE TO BE REFUND ED WITH INTEREST, HENCE NOT INCOME AS HELD IN THE PAST AND WAS ACCORDINGLY NOT OFFERED FOR TAXATION. MERE ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 10 PASSING OF AWARD WHEN REMAINED UNDER CHALLENGE, WI THDRAWAL IS STIPULATED WITH CONDITIONS, SUCH RECEIPT IS NOT INCOME AND WAS RIGHTLY NOT RETURNED AS INCOME BY THE ASSESSEE RESPONDENT AND WAS RIGHTLY I GNORED FOR TAXATION IN THE ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3) OF THE A CT. IT WAS SUBMITTED THAT THE AMOUNT RECEIVED ON FURNI SHING OF EQUIVALENT AMOUNT OF BANK GUARANTEE IS THE LIABILITY OF THE ASSESSEE AND ASSESSEE RESPONDENT HOLDS THE AMOUNT RECEIVED FROM STATE OF RAJASTHAN (PWD) AS A TRUSTEE AND WHICH HAS ALSO BEEN SHOWN BY THE AUDITOR IN AUDIT REPORT ISSUED U/S 44AB OF THE IT ACT. WE SUBMIT THAT AFTER THE FINAL ORDER O F THE JURISDICTIONAL HIGH COURT THE SAID AMOUNT WILL BE OFFERED FOR TAXATION. IN SUPPORT OF ITS CONTENTIONS, THE LD AR DRAWN OUR REFERENCE TO THE FOLLOWING AUTHORITIES ON THE AFORESAID ISSUE: 1. CIT VS. HINDUSTAN HOUSING AND LAND DEVELOPMENT LTD 161 ITR 524 (SC) 2. CIT VS. L. SAMBHASHIVA REDDY (2015) 62 TAXMAN.COM 1 74 (KAR) 3. CIT VS SARVATRA ROADRUNNERS P LTD 173 TAXMAN 141 (D EL) 2.4 THE LD. DR SUBMITTED THAT THE ASSESSEE HAS TOO K THE PLEA THAT THE ORDER OF HONBLE ITAT IN ITA NO.1003/JP/2003 FOR THE ASSE SSMENT YEAR 2004-05 IN ASSESSEES OWN CASE, THE IDENTICAL ISSUE WAS INVOLV ED AND DECIDED IN FAVOUR OF THE ASSESSEE. THIS PLEA CANNOT BE ACCEPTED BECAUSE THE FACTS OF ORDER OF ITAT JAIPUR IN THE ASSESSEES OWN CASE FOR THE A.Y. 2004 -05 ARE COMPLETELY DIFFERENT TO THE FACTS IN A.Y.2008-09 WHICH ARE CLEAR FROM T HE FINDINGS GIVEN BY THE AO IN PARA 2.3.2 ON PAGE 8 OF THIS ASSESSMENT ORDER A ND HE RAISED THE ISSUE THAT THE EXPENSES RELEVANT TO ARBITRATION CONTRACT REC EIPTS HAVE ALREADY BEEN CLAIMED BY THE ASSESSEE IN EARLIER YEARS BY TREATIN G THEM AS CRYSTALLISED IN ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 11 THOSE YEARS WHILE ARBITRATION CONTRACT RECEIPTS WERE NOT SHOWN IN THOSE RELEVANT YEARS AS HIS INCOME IN THE P&L ACCOUNT A GAINST THE EXPENSE BUT SAME IS TREATED CONTINGENT LIABILITY AS SHOWN IN T HE BALANCE SHEET. THE METHOD APPLIED BY THE ASSESSEE IS COMPLETELY WRONG AND NOT PERMISSIBLY UNDER THE PROVISIONS OF LAW AND THEREFORE, AO TREATED THOSE DISPUTED RECEIPTS AS ASSESSEES INCOME FOR THE A.Y. 2008-09 ON ACTUAL RE CEIPT BASIS. THOSE FACTS AND ISSUES WERE NOT BEFORE HONBLE ITAT JAIPUR IN A.Y . 2004-05. THEREFORE THE ITAT DECISION IN THE ASSESSEES CASE FOR A.Y. 2004- 05 IS COMPLETELY ON DIFFERENT FOOTINGS AND ASSESSEES RELIANCE UPON THE SAID DECI SION OF ITAT, JAIPUR IS COMPLETELY MISPLACED. IN VIEW OF THESE FACTS ASSES SEES PLEA CANNOT BE ACCEPTED. 2.5 THE HONBLE SUPREME COURT IN CASE OF CASE OF HI NDUSTAN HOUSING AND LAND DEVELOPMENT TRUST LTD HELD AS UNDER (HEAD NOTE S): IT IS WELL SETTLED THAT IT IS ON THE FINAL DETERMI NATION OF THE AMOUNT OF COMPENSATION THAT THE RIGHT TO SUCH INCOME IN THE N ATURE OF COMPENSATION WOULD ARISE OR ACCRUE AND TILL THEN THERE IS NO LIA BILITY IN PRAESENTI IN RESPECT OF THE ADDITIONAL COMPENSATION CLAIMED BY THE OWNER OF THE LAND. IN THE INSTANT CASE, ALTHOUGH THE AWARD WAS MADE BY THE ARBITRATOR ON 29-7- 1955, ENHANCING THE AMOUNT OF COMPENSATION PAYABLE TO THE ASSESSEE, THE ENTIRE AMOUNT WAS IN DISPUTE IN THE APPEAL FILED BY THE GOVERNMENT. INDEED, THE DISPUTE WAS REGARDED BY THE COURT AS REAL AND S UBSTANTIAL BECAUSE THE ASSESSEE WAS NOT PERMITTED TO WITHDRAW THE SUM DEPO SITED BY THE GOVERNMENT WITHOUT FURNISHING A SECURITY BOND FOR REFUNDING TH E AMOUNT IN THE EVENT OF THE APPEAL BEING ALLOWED. THERE WAS NO ABSOLUTE RIGHT T O RECEIVE THE AMOUNT AT THAT STAGE. IF THE APPEAL WAS ALLOWED IN ITS ENTIRE TY, THE RIGHT TO PAYMENT OF THE ENHANCED COMPENSATION WOULD HAVE FALLEN ALTOGETHER. ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 12 2.6 THE HONBLE KARNATAKA HIGH COURT IN CASE OF L. SAMBASHIVA REDDY WHEREIN THE MATTER WAS TAXABILITY OF AMOUNT RECEIVE D IN PURSUANCE OF AN INTERIM ARBITRATION AWARD, FOLLOWING THE HONBLE SU PREME COURT DECISION IN CASE OF HINDUSTAN HOUSING AND LAND DEVELOPMENT TRUS T LTD HELD AS UNDER (HEAD NOTES): AS SETTLED BY VARIOUS JUDGMENTS, INCOME-TAX IS NOT LEVIED ON MERE RIGHT TO RECEIVE COMPENSATION; THERE MUST BE SOMETHING TANGI BLE, IN NATURE OF DEBT OR IN NATURE OF AN OBLIGATION TO PAY AN ASCERTAINED AM OUNT. TILL SUCH TIME, NO INCOME CAN BE SAID TO HAVE ACCRUED. THE ENHANCED CO MPENSATION ACCRUES ONLY WHEN IT BECOMES PAYABLE, I.E., WHEN THE COURT ACCEP TS THE CLAIM. WHEN ASSESSEE RECEIVES MONEY, EITHER UNDER AN AWARD OR BY A DECREE OF THE COURT, OR UNDER AN AWARD PASSED BY THE ARBITRATOR, IF THE AMOUNT PAID TO HIM IS NOT IN DISPUTE, THEN THAT AMOUNT REPRESENTS HIS INC OME. HE SHOULD OFFER IT TO TAX IN THE PREVIOUS YEAR OF DATE OF PAYMENT OF THE SAID AMOUNT. BUT IF AMOUNT DUE TO HIM IS IN DISPUTE AND IS SUBJECT-MATTER OF LITIG ATION AND DURING PENDENCY OF LITIGATION, IF ANY INTERIM ORDER IS MADE FOR PAYMEN T OF THE SAID AMOUNT, THE SAID PAYMENT IS SUBJECT TO THE FINAL RESULT OF THE SAID PROCEEDINGS. IN CASE WHERE ASSESSEE LOSES LEGAL BATTLE, THEN AMOUNT RECEIVED B Y WAY OF INTERIM PAYMENT, HAS TO BE REPAID. THE AMOUNT TO WHICH HE IS ENTITLE D TO OUT OF THE DISPUTED AMOUNT WOULD CRYSTALLIZE ONLY WHEN THE LITIGATION E NDS AND PAYMENT IS MADE AFTER THE FINALITY OF THE LITIGATION, THEN THAT AMO UNT IS TO BE OFFERED TO TAX IN THE PREVIOUS YEAR OF THE DATE OF PAYMENT. MERELY BECAUS E BY VIRTUE OF AN INTERIM ORDER WITH OR WITHOUT CONDITIONS, SOME PAYMENT IS M ADE FOR THE PURPOSE OF THE ACT, IT WOULD NOT CONSTITUTE INCOME AND, THEREFORE, THERE IS NO LIABILITY TO PAY TAX ON THE DAY SUCH INTERIM PAYMENT IS RECEIVED. TH EREFORE, IN PRESENT CASE, ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 13 ASSESSEE IS LIABLE TO PAY TAX ON AMOUNT IN QUESTION , ONLY AFTER FINAL CONCLUSION OF DISPUTE BEFORE HIGH COURT. 2.7 SIMILARLY, THE HONBLE DELHI HIGH COURT IN CASE OF SARVATRA ROADRUNNERS (P) LTD HAS HELD AS UNDER (HEAD NOTES): ON A READING OF THE INTERIM ORDER PASSED BY THE HI GH COURT, IT WAS QUITE CLEAR THAT THE ASSESSEE HAD NO RIGHT TO RECEIVE THE MONEY IN THE SENSE THAT NO RIGHT HAD ACCRUED OR VESTED IN THE ASSESSEE IN THAT REGAR D. IN THE EVENT OF THE COMPANY SUCCEEDING IN THE APPEAL FILED BY IT, THE A SSESSEE WAS OBLIGED TO RETURN THE AMOUNT BY WAY OF RESTITUTION UNDER SECTI ON 144 OF THE CODE OF CIVIL PROCEDURE, 1908. IN VIEW OF THE ABOVE, BOTH THE COMMISSIONER (APPEAL S) AS WELL AS THE TRIBUNAL WERE CORRECT IN DELETING THE ADDITION MADE BY THE A SSESSING OFFICER. 2.8 IN THE PRESENT CASE, THE HONBLE RAJASTHAN HIGH COURT AS AN INTERIM RELIEF HAS DIRECTED THE STATE OF RAJASTHAN TO RELEASE 50% OF THE AMOUNT AWARDED IN FAVOUR OF THE ASSESSEE, SUBJECT TO SUBMISSION OF EQ UAL AMOUNT OF BANK GUARANTEE BY THE ASSESSEE AND THE MATTER IS PENDIN G ADJUDICATION ON MERITS BEFORE THE HONBLE RAJASTHAN HIGH COURT. IT WAS THE REFORE A CONDITIONAL RECEIPT AND THE ASSESSEE COULD NOT BE SAID TO HAVE AN ABSOL UTE RIGHT OF HIS OWN IN RESPECT OF THE SAID AMOUNT. IT CANNOT BE SAID THAT HE HAS CREATED A DEBT IN HIS FAVOUR. IN HINDUSTAN HOUSING CASE (SUPRA), THE HON BLE SUPREME COURT HAS HELD THAT INCOME TAX IS NOT LEVIED ON A MERE RIGH T TO RECEIVE COMPENSATION; THERE MUST BE SOMETHING TANGIBLE , SOMETHING IN THE NATURE OF AN OBLIGATION TO PAY THE ASCERTAINED AMOUNT. TILL SUCH TIME, NO INC OME CAN BE SAID TO HAVE ACCRUED. IN THE INSTANT CASE, THE STATE OF RAJASTH AN HAS NOT ACCEPTED ITS LIABILITY BUT AT THE SAME TIME, DEPOSITED THE AMOUN T AS DIRECTED BY THE HONBLE ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 14 RAJASTHAN HIGH COURT. HOWEVER, THE FINAL LIABILITY IS CONTINGENT ON ADJUDICATION OF MATTER ON MERIT AND IT WAS AN INTERIM ARRANGEMEN T TO SAFEGUARD THE INTEREST OF BOTH THE PARTIES. WHERE THE CHALLENGE TO THE AR BITRAL AWARD ENDS IN FAVOUR OF THE ASSESSEE, THE REVENUE WOULD BE ENTITLED TO B RING THE SAME TO TAX. CONVERSELY, WHERE THE CHALLENGE TO THE ARBITRAL AWA RD ENDS AGAINST THE ASSESSEE, THE STATE OF RAJASTHAN WOULD BE ENTITLED TO ENCASH THE BANK GUARANTEE AND RECOVER THE AMOUNT PAID TO THE ASSESS EE. IN LIGHT OF ABOVE WELL- SETTLED PROPOSITION IN LAW, IN THE INSTANT CASE, TH E AMOUNT RECEIVED BY THE ASSESSEE CANNOT BE REGARDED AS INCOME WHICH HAS ACC RUED UNLESS AND UNTIL THE PROCEEDINGS RELATING TO ARBITRAL AWARD ATTAINS FIN ALITY. BESIDES THAT, EVEN FROM WELL ESTABLISHED ACCOUNTING PRINCIPLES AND ACCRUAL SYSTEM OF ACCOUNTING AS FOLLOWED BY THE ASSESSEE, WHERE THE PROBABILITY OF RECEIPTS IN FAVOUR OF THE ASSESSEE IS CONTINGENT ON FINAL OUTCOME OF COURTS PROCEEDINGS, SUCH CONTINGENT RECEIPTS HAVE RIGHTLY BEEN SHOWN AS LIAB ILITY AND NOT REFLECTED AS TAXABLE RECEIPTS IN THE PROFIT/LOSS ACCOUNT. SIMIL AR ISSUE WAS INVOLVED IN AY 2004-05 WHERE THE COORDINATE BENCH IN ITS DECISON R EFERRED SUPRA HAS HELD SUCH INTERIM ARBITRATION RECEIPTS PENDING FINAL OUT COME AS NOT TAXABLE. WE THEREFORE DONOT SEE ANY INFIRMITY IN THE ORDER OF T HE LD CIT(A) WHO HAS RIGHTLY FOLLOWED THE ORDER OF THE COORDINATE BENCH (SUPRA). THE GROUND NO. 1 OF THE REVENUE IS THEREFORE DISMISSED. 3. IN RESPECT OF GROUND NO.2, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS NOT SHOWN THE INTEREST ACCRUAL ON FDRS MADE FOR GIVING BANK GUARANTEE IN HIS RETURN OF INCOME FOR THE YEAR UNDE R CONSIDERATION. THE ASSESSING OFFICER ACCORDINGLY COMPUTED INTEREST @ 7 % ON RS 91,59,305 AND BROUGHT THE SAME TO TAX IN ADDITION TO ARBITRATION RECEIPTS. ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 15 3.1 THE LD. AR OF THE ASSESSEE SUBMITTED THAT ON P ERUSAL OF THE AUDITED PROFIT AND LOSS ACCOUNT, YOUR HONOUR SHALL NOTICE THAT NET INTEREST OF RS. 6,23,298/- HAS BEEN SHOWN. DURING THE COURSE OF ASS ESSMENT PROCEEDINGS U/S 143(3) THE LD. AO RAISED A SPECIFIC QUERY WITH REGA RDS TO TREATMENT OF SUCH INTEREST INCOME AND VIDE LETTER DATED 11.05.2010 IT WAS SUBMITTED BEFORE THE LD. AO VIDE PARA 4 THAT DURING THE YEAR UNDER CONS IDERATION YOUR ASSESSEE SHOWING NET INTEREST PROFIT IN P&L ACCOUNT RS. 623 ,298/-. THIS AMOUNT REPRESENTS INTEREST ON FDR MADE FOR THE PURPOSE OF BANK GUARANTEE TO RECEIVE THE PAYMENT FROM ARBITRATION AWARD HENCE THIS IS P URELY A BUSINESS INCOME AND NOT FOR INVESTMENT AND HENCE THIS INCOME MAY B E TREATED AS BUSINESS INCOME. THE DETAILS OF NET INTEREST OF RS. 6,23,2 98/- WAS ALSO SUBMITTED WHEREIN GROSS INTEREST RECEIVED WAS DISCLOSED AT RS . 8,81,849/- AND INTEREST PAID TO BANK WAS SHOWN AT RS. 2,58,551/-. IN THE AS SESSMENT ORDER U/S 143(3) DATED 14.05.2010 THE LD. AO WAS SATISFIED AND HAS A LSO TREATED THE SAME AMOUNT OF RS. 56,23,298/- AS INCOME FROM BUSINESS. IN THE RE-ASSESSMENT PROCEEDINGS, IT WAS SUBMITTED TO THE AO THAT THE AS SESSEE HAS ALREADY DISCLOSED THE INTEREST RECEIVED FROM FDR MADE FOR BANK GUARANTEE PURPOSES AND PAID DUE TAX TOWARDS THE SAME AND ASKED THE LD. AO TO PERSUE THE AUDIT REPORT AND REPLIES FURNISHED DURING THE COURSE OF A SSESSMENT PROCEEDINGS U/S 143(3). BUT THE AO CHOSE TO IGNORE THE SAME AND WI THOUT VERIFICATION HAS HELD THAT ASSESSEE RESPONDENT HAS NOT DISCLOSED THE IN TEREST RECEIVED ON SUCH FDR AND HAS AGAIN ADDED THE SAME AT RS. 7,55,642/-. IT WAS ALTERNATIVELY ALSO SUBMITTED TO THE AO THAT ASSESSEE RESPONDENT HAS I NADVERTENTLY SUBJECTED SUCH INTEREST RECEIVED ON FDR MADE TO OBTAIN BANK G UARANTEE TO TAX, WHEREAS AS PER SETTLED LAW, THE SAME WAS NOT SUBJECTED TO TAX AT ALL. IT MAY BE KEPT IN MIND THAT IN CASE THE ASSESSEE WAS TO LOOSE THE MAT TER ON MERITS BEFORE THE ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 16 HONBLE RAJASTHAN HIGH COURT THEN IT WOULD HAVE TO PAY BACK THE AMOUNT WITH INTEREST. 3.2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD CIT(A) HAS GIVEN A FINDING THAT T HE ASSESSEE HAS SHOWN NET INTEREST OF RS. 6,23,298/- IN HIS PROFIT/LOSS ACCOU NT WHICH COMPRISES OF GROSS INTEREST RECEIVED INCLUDING INTEREST ON FDRS AMOUNT ING TO RS. 8,81,849/- AND INTEREST PAID TO BANK AMOUNTING TO RS. 2,58,551/-. THE SAID FINDING HAS NOT BEEN CONTROVERTED BEFORE US. IN LIGHT OF THE SAME, WE DONOT SEE ANY INFIRMITY IN THE ORDER OF LD CIT(A) IN DELETING THE ADDITION OF RS 755,642. IN THE RESULT, THE GROUND NO. 2 OF REVENUE IS DISMISSED. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/02/ 2017. SD/- SD/- (KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 28/02/2017 VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO WARD 1(1), KOTA. 2. IZR;FKHZ@ THE RESPONDENT- SHRI CHANDI RAM, KOTA 3. VK;DJ VK;QDR@ CIT KOTA 4. VK;DJ VK;QDRVIHY@ THE CIT(A) KOTA 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR ITA NO.11/JP/15, ITO WARD 1(1), KOTA VS. SHRI CHANDI RAM, KOTA 17 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 11/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.