SMT. PREMLATA PURSHOTTAM PALDIWAL, Nagpur V. I.T.O. Ward 1(3), Nagpur

ITA 241/NAG/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3126 (ITAT-NAGPUR)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 18-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: S C THAKAR; R V LOYA C J THAKAR
• Keywords: Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 45(5); 234B; 148; 144; 11

Judgement Text

1 ITA NOS. 241 TO 245/NAG/201 5 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (SMC) S.NO. ITA NO. ASSTT. YEAR. 1. 241/NAG/2015 2004 - 05 2. 242/NAG/2015 2005 - 06 3. 243/NAG/2015 2006 - 07 4. 244/NAG/2015 2007 - 08 5. 245/NAG/2015 2008 - 09. SMT. PREMLATA PURUSHOTTAM PALDIWAL, THE INCOME - TAX OFFIER, NAGPUR. VS. WARD - 1(3), NAGPUR. PAN ABJPP 6118N APPELLANT. RESPONDENT. APP ELLANT BY : S/SHRI R.V. LOYA, C.J. THAKAR & S.C. THAKAR. RESPONDENT BY : SHRI NARENDRA KANE. DATE OF HEARING : 20 - 01 - 2016 DATE OF PRONOUNCEMENT : 24 TH FEBRUARY, 2016. O R D E R THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF LEARNED CIT(APPEALS). SINCE THE ISSUES RAISED ARE COMMON AND CONNECTED AND THE APPEALS WERE HEARD TOGETHER, THESE HAVE BEEN CONSOLIDATED AND DISPOSED OF TOGETHER. THE GROUNDS OF APPEAL READ AS UNDER : 1. THAT THE ORDER OF THE AO PASSED U/S 143(3) R.W.S. 147 IS BAD IN LAW AND WRONG ON FACTS AND THE CIT(A) HAS ERRED IN NOT SETTING ASIDE THE SAME. ON THE FACTS AND CIRCUMSTANCES THE AO ERRED IN REOPENING THE ASSESSMENT U/.S 147 AND THE CIT(A) WAS UNJUSTIFIED I N CONFIRMING THE SAME. 2 ITA NOS. 241 TO 245/NAG/201 5 2. THAT THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN HOLDING THAT THE AO WAS CORRECT IN TREATING THE INTEREST OF RS.5,26,343/ - , RS.3,73,808/ - , RS.4,99,358/ - , RS.4,10,281/ - AND RS.3,76,194/ - FOR A.YS. 2004 - 05, 2005 - 06, 2006 - 07, 2007 - 0 8 AND 2008 - 09 RESPECTIVELY ACCRUED ON FIXED ON DEPOSITS ON AMOUNTS RECEIVED AS ADDITIONAL COMPENSATION AS TAXABLE AND FURTHER ERRED IN CONFIRMING THE ADDITION MADE BY THE AO. THE ACTION OF THE LEARNED AUTHORITIES IS ON BASIS OF WRONG APPRECIATION OF FACTS AND LEGAL PROVISIONS AND IS LIABLE TO BE SET ASIDE. 3. THAT THE LEARNED ASSESSING OFFICER ERRED IN LAW AND ON FACTS IN CHARGING INTEREST U/S 234B AND 234D. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ACTION OF THE AUTHO RITY IS NOT JUSTIFIED. 2 . APROPOS GROUND NO. 1 PERTAINING TO VALIDITY OF REOPENING. FACTS IN THIS REGARD ARE COMMON IN ALL THE YEARS. HENCE I AM REFERRING TO THE LEARNED CIT(APPEALS) ORDER FOR ASSESSMENT YEAR 2004 - 05 FOR MY ADJUDICATION. THE ASSESSEE HAS ORIGINALLY FILED RETURN S OF INCOME AND IN THE SAID RETURNS THE ASSESSEE HAD CLAIMED THE INTEREST ACCRUED ON FDR AS NOT TAXABLE. THE SAID RETURNS WERE PROCESSED U/S 143(1). THE ASSESSEE HAS RAISED THE ISSUE OF REOPENING BEFORE THE LEARNED CIT(APPEALS) ALSO. IN HIS APPELLATE ORDER DATED 08 - 05 - 2015 FOR ASSESSMENT YEAR 2004 - 05 LEARNED CIT(APPEALS) HAS DEALT WITH THE ISSUE AS UNDER: 4.1 THE ASSESSEE FILED RETURN OF INCOME ON 15.06.2004. IN THE RETURN FILED, THE ASSESSEE HAD CLAIMED INTEREST OF RS.5,26,343/ - ACCRUED ON FDRS AS NOT TAXABLE. ON PERUSAL OF RETURN OF INCOME FILED, THE AO FOUND THAT THE CLAIM MADE BY THE ASSESSEE IS NOT CORRECT, THEREFORE THE INCOME CHARGEABLE TO TAX TO THE EXTENT OF INTEREST INCOME CLAIMED AS EXEMPT TO THE TUNE OF RS.5,26,343/ - . THE AO ACCORDINGLY, AFTE R RECORDING THE REASONS HAD ISSUED THE NOTICE U/S. 148 OF THE I.T. ACT, 1961 ON 28.03.2011. IN RESPONSE THERETO, THE ASSESSEE SUBMITTED BEFORE THE AO THAT THE RETURN OF INCOME FILED ON 15.06.2004 MAY BE TREATED AS RETURN HAVING BEEN FILED IN RESPONSE TO TH E NOTICE U/S. 148 OF THE I.T. ACT. THE AO ACCORDINGLY, REGULARISED THE RETURN OF INCOME BY ISSUE OF NOTICE U/S.143(2) ON 27.06.2011 OF THE ACT. IN RESPONSE TO THE SAID NOTICE, SHRI MANMOHAN LOYA, ADVOCATE ATTENDED AND EXPLAINED THE RETURN FILED. 4.2 THE REASON RECORDED BY THE AO FOR REOPENING THE ASSESSMENT ARE DULY APPEARING ON PAGE NO. 1 & 2 OF THE ASSESSMENT ORDER. THE AO IN THE REASONS RECORDED HAS CLEARLY BROUGHT OUT A CASE THAT THE INCOME CHARGEABLE TO TAX TO THE TUNE OF 3 ITA NOS. 241 TO 245/NAG/201 5 RS.5,26,343/ - HAS ESCAP ED THE ASSESSMENT. THE AO THEREFORE, HAD FORMED A BELIEF ON THE BASIS OF MATERIAL EVIDENCES EMANATED FROM THE RETURN OF INCOME FILED BY THE ASSESSEE, RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V/S. GHANSHYAM (HUF) REPORTED IN 3 15 ITR 1 (SC). 4.3 IT IS THUS SEEN FROM THE ABOVE THAT THE ASSESSEE HAD NO OBJECTION TO THE REASONS RECORDED BY THE AO AND HAD FAITHFULLY COMPLIED WITH THE STATUTORY NOTICES ISSUED BY THE AO DURING THE ASSESSMENT PROCEEDINGS. THEREFORE, THE GROUND TAKEN B Y THE APPELLANT IN THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE NOTICE ISSUED U/S. 148 BY THE AO IS ILLEGAL IS DEVOID OF ANY MERITS AND DESERVES TO BE DISMISSED. AGAINST THE ABOVE ORDER ASSESSEE HAS APPEALED BEFORE THE ITAT. 3 . I HAVE HEARD BOTH THE COUNS EL AND PERUSED THE RECORDS ON THE ISSUE OF REOPENING. I FIND THAT IT IS CLEAR FROM THE ABOVE THAT THE ORIGINAL RETURNS FILED BY THE ASSESSEE WERE NOT SUBJECT TO ASSESSMENT. THEY WERE MERELY PROCESSING U/S 143(1). IN S UCH A SITUATION IT CANNOT BE SAID THAT THERE WAS AN APPLICATION OF MIND OR FORMATION OF AN OPINION BY THE AO WITH RESPECT TO THE ORIGINAL RETURN. THE CASE HAS BEEN DULY REOPENED ON THE BASIS OF A DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS. GHANSHYAM 315 ITR 1 ON THE BASIS OF WHICH TH E AO HAS RECORDED THE REASON THAT INCOME CHARGEABLE TO TAX TO THAT EXTENT HAS ESCAPED THE ASSESSMENT. IN SUCH SITUATION, IN MY CONSIDERED OPINION, THERE CAN BE NO CASE OF CHANGE OF OPINION OR THERE BEING ANY INFIRMITY IN THE REASONS FOR REOPENING. IN SUCH SITUATION I FIND THAT THERE IS NO INFIRMITY IN THE ORDER OF LEARNED CIT(APPEALS) HOLDING THAT THE REASSESSMENT PROCEEDINGS ARE VALID. ACCORDINGLY THIS ISSUE RAISED BY THE ASSESSEE STANDS DISMISSED. 4 . APROPOS GROUND NO. 2: SINCE THE FACTS ARE IDENTICAL, I REFER TO THE FACTS AND FIGURES TAKEN FROM ASSESSMENT YEARS 2004 - 05 AS FOLLOWS : THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS FOUND THAT THE ASSESSEE HAS EARNED INCOME ON BANK FDRS AMOUNTING TO RS.5,26,343/ - AND CLAIMED THE SAME AS NOT TAXABLE ON THE GROUND T HAT THE INTEREST EARNED ON FIXED DEPOSITS WITH BANK AND POST OFFICE REPRESENTS THE AMOUNT OF ENHANCED COMPENSATION WHICH IS 4 ITA NOS. 241 TO 245/NAG/201 5 NOT TAXABLE. THE FACTS OF THE CASE UNDER APPEAL ARE IDENTICAL TO THE FACTS OF THAT OF A.Y. 2008 - 09 THE A.O., THEREFORE, FOL LOWING THE REASONS ELABORATELY DISCUSSED IN A.Y. 2008 - 09 HAS DISALLOWED THE CLAIM FOR EXEMPTION OF INTEREST INCOME FOR THE YEAR UNDER APPEAL AS WELL. THE AO HAD DECLINED TO AGREE WITH THE VERSION OF THE ASSESSEE AND ISSUED A SHOW CAUSE NOTICE, IN RESPONSE THERETO, THE ASSESSEE FILED A WRITTEN SUBMISSION. THE ASSESSEE CONTENDED BEFORE THE AO THAT THE ASSESSEE WAS AWARDED ADDITIONAL ENHANCED COMPENSATION BY THE COURT AGAINST THE ACQUISITION OF HER AGRICULTURAL LAND. THE APPELLANT FURTHER SUBMITTED THAT THE UNION OF INDIA HAS CHALLENGING THE SAID ORDER IN APPEAL BEFORE THE HONBLE HIGH COURT IN APPEAL NO. 716 OF 1996, WHICH IS PENDING IN THE HIGH COURT. THE APPELLANT FURTHER SUBMITTED THAT THE UNION OF INDIA FILED A CIVIL SUIT FOR STAY OF EXECUTION OF THE HIGH COURT ORDER WHEREAS THE APPELLANT HAS ALSO FILED C.A. NO. 146/97, SEEKING PERMISSION TO WITHDRAW THE DISPUTED AMOUNT OF RS.63,33,548/ - DEPOSITED BY THE UNION OF INDIA AS PER THE HIGH COURT ORDER. THE HIGH COURT PERMITTED THE ASSESSEE TO WITHDRAW THE SAID AMOUNT AGAINST FURNISHING THE BANK GUARANTEE OF RS.35 LAKHS. IT IS THIS AMOUNT OF RS.63,33,548/ - DEPOSITED IN THE FD RS BY THE APPELLANT ON WHICH INTEREST HAS ACCRUED. THE CONTENTION OF THE ASSESSEE BEFORE THE AO WAS THAT SINCE THE ENTIRE AMOUNT IS DISPUTED BEFORE THE HIGH COURT, THE SAME HAS NOT ACCRUED TO THE ASSESSEE AND CONSEQUENTLY ANY ACCRETION ON THIS DISPUTED AMO UNT HAS ALSO NOT ACCRUED. THE ASSESSEE THUS CONTENDED THAT THE ASSESSEE HAS BEEN HOLDING THE AMOUNT AS A TRUSTEE ON BEHALF OF THE UNION OF INDIA AS PER THE ORDER OF THE HIGH COURT. THE ASSESSEE FURTHER ARGUED THAT THE AMOUNT WILL ACCRUE ONLY WHEN THE MATTE R WILL ACHIEVE THE FINALITY AFTER THE DECISION OF THE HIGH COURT OR SUPREME COURT BECAUSE, IF THE MATTER IS DECIDED AGAINST THE ASSESSEE, HE WILL HAVE TO RETURN THE ENTIRE AMOUNT ULTIMATELY TO THE UNION OF INDIA. THUS, THE ASSESSEE ARGUED THAT THE AMOUNT OF RS.63,33,548/ - HAS NOT ACCRUED TO HER, THEREFORE, FURTHER ACCRETION OUT OF THE SAME DOES NOT RISE. THE ASSESSEE IN THIS REGARD HAS PLACED RELIES ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. HINDUSTAN HOUSING AND 5 ITA NOS. 241 TO 245/NAG/201 5 LAND DEVELOPMENT T RUST LTD., REPORTED IN 161 ITR 54. THE ASSESSEE HAD ALSO RELIED ON THE JUDGEMENT OF THE HONBLE ITAT, NAGPUR BENCH, NAGPUR WHICH HAD CONSIDERED THE ABOVE JUDGEMENT OF THE HONBLE SUPREME COURT. THE AO, HOWEVER, RELIED ON THE LATEST JUDGEMENT OF THE HONBL E SUPREME COURT IN THE CASE OF CIT FARIDABAD VS. GHANSHYAM (HUF) REPORTED IN 224 ITR 522, DELIVERED ON 16 TH JULY, 2009. THE AO, IN THE COURSE OF ASSESSMENT PROCEEDING FOR A.Y. 2008 - 09 FURTHER ISSUED A SHOW CAUSE NOTICE DATED 19.07.2010 IN RESPONSE TO WHICH THE APPELLANT FILED A WRITTEN SUBMISSION STATING THAT THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT FARIDABAD VS. GHANSHYAM (HYF) WAS RENDERED WITH REFERENCE TO THE PROVISIONS OF SECTION 45(5) OF THE I.T. ACT. THE ASSESSEE SUBMITTED THAT NO CAPITAL GAIN HAS RISEN OUT OF COMPENSATION RECEIVED AGAINST COMPULSORY ACQUISITION. THE ASSESSEE FURTHER CONTENDED THAT IN THAT CASE THE HONBLE SUPREME COURT HAS DECIDED REGARDING TAXABILITY OF ENHANCED COMPENSATION AND HASM HELD THAT THE SAME SH ALL BE DEEMED TO BE INCOME OF PREVIOUS YEAR IN WHICH IT IS RECEIVED. THE APPELLANT THUS, RELID ON THE ORDER OF THE HONBLE ITAT AND HELD THAT IT IS BINDING ON THE AO TO FOLLOW THE SAME. THE LD. AO, HOWEVER, DECLINED TO AGREE WITH THE CONT ENTIONS RAISED B Y THE APPELLANT ON THE GROUND THAT THE RATIO OF THE DECISION OF THE HONBLE APEX COURT IN GHANSHYAM (HUF) IS APPLICABLE TO THE FACTS OF THE CASE OF THE PRESENT APPELLANT AS THE ISSUE OF ENHANCED COMPENSATION BEING IN DISPUTE IS INVOLVED IN BOTH THE CASES A ND BOTH THE ASSESSEE HAD NOT OFFERED THE AMOUNTS OF ENHANCED COMPENSATION FOR TAXATION, THEREFORE, THE RATIO OF THE JUDGEMENT IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE OF THE APPELLANT. THE LD. AO IN PARA 7 & 8 OF HIS ASSESSMENT ORDER FOR A.Y. 2008 - 0 9 HAS ELABORATELY DEALT WITH THE JUDICIAL DECISIONS RELIED UPON BY THE APPELLANT 6 ITA NOS. 241 TO 245/NAG/201 5 AND DISTINGUISHED THE SAME ON THE FACTS. AS REGARDS TO THE ASSESSEES PLEADING THAT BY NOT FOLLOWING THE JUDGEMENT OF THE ITAT BY THE AO AMOUNTS DISREGARD TO THE ORDER OF HON BLE ITAT, THE AO HAS RECORDED A FINDING THAT THERE IS NO PROVISION UNDER THE INCOME TAX ACT, WHEREBY THE DEDUCTION SHALL BE ALLOWED, IF THE ASSESSEE IS REQUIRED TO MAKE THE PAYMENT OF INTEREST AT A LATER STAGE BASED ON THE DECISION OF THE APPROPRIATE COMPE TENT AUTHORITIES AND COURTS. ON THE CONTRARY, THE DECISION OF THE HONBLE SUPREME COURT, BEING THE LAW OF THE LAND, IS BINDING ON ALL INCLUDING THE LOWER COURTS IN HIERARCHY. THAT T HE SUPREME COURT HAS HELD THAT THE RE - COMPUTATION OF THE ASSESSMENT ORDER U/S 45(5) NOT ONLY DEALS WITH THE RE - WORKING AS URGED ON BEHALF OF THE ASSESSEE BUT ALSO WITH THE CHANGE IN THE FULL VALUE OF CONSIDERATION AND SINCE THE ENHANCED COMPENSATION CONSIDERATION (INCLUDING INTEREST ACCRUED) BECOME PAYABLE UNDER 1894 ACT AT DI FFERENT STAGES, THE RECEIPT OF SUCH ENHANCED COMPENSATION IS TO BE TAXED IN THE YEAR OF RECEIPTS SUBJECT TO ADJUSTMENTS, IF ANY, UNDER SECTION 155(16) OF THE I.T. ACT, 1961 LATER ON. THUS, THE YEAR IN WHICH ENHANCED COMPENSATION IS RECEIVED, IS THE YEAR OF TAXABILITY. THE AO IN A.Y. 2008 - 09 HAS ALSO RECORDED A FINDING THAT IN HER RETURN OF INCOME FILED FOR AY 2009 - 10, THE APPELLANT HAS ACCEPTED THE INTEREST INCOME FROM THE FDRS IN QUESTION AS TAXABLE AND HAD NOT DISPUTED THE SAME AS NON TAXABLE BY OFFERING THE SAME FOR TAXATION IN THE RETURN OF INCOME FILED FOR THAT YEAR. 5. UPON ASSESSEES APPEAL, LEARNED CIT(APPEALS) CONFIRMED THE AOS ORDER HOLDING AS UNDER : AFTER CAREFUL EXAMINATION OF THE MATERIAL FACTS AVAILABLE ON THE RECORD AND REMAND REPORT OF THE AO, I AM INCLINED TO AGREE WITH THE VIEW TAKEN BY THE AO IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF CIT FARIDABAD VS. GHANSHYAM (H UF) WHICH IS 7 ITA NOS. 241 TO 245/NAG/201 5 SQUARELY APPLICABLE TO THE FACTS OF THE CASE OF THE PRESENT APPELLANT. THEREFORE, RESPECTFULLY FOLLOWING THE SAME, THE VIEW TAKEN BY THE AO TO BRING TO TAX THE AMOUNT OF INTEREST ACCRUED AT RS.5,26,343/ - ON ENHANCED COMPENSATION IS UPHELD. 6. AGAINST THE ABOVE ORDER THE ASSESSEE IN APPEAL BEFORE THE TRIBUNAL. 7. LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THOUGH THE IMPUGNED ISSUE HAS BEEN DECIDED AGAINST THE ASSESSEE FOR THE EARLIER YEARS BY THE ITAT AGAINST THE ASSESSEE, THE ASSESSEE IS NOW PLACING RELIANCE UPON A LATER DECISION OF HONBLE JURISDICTIONAL HIGH COURT WHICH ACCORDING TO HIM APPLY TO THE FACTS OF THE CASE AND THE SAME SQUARELY COVERS THE ISSUE IN FAVOUR OF THE ASSESSEE . T HE CASE BEING THE ORDER OF HONBLE BOMBAY HIGH COURT IN THE CASE OF D SL ENTERPRISES P. LTD. VS. N.C. CHANDR TRE , ITO 355 ITR 209. 8. PER CONTRA LEARNED D.R. SUBMITTED THAT THE CASE LAW REFERRED BY THE LEARNED COUNSEL OF THE ASSESSEE FROM THE HONBLE JURISDICTIONAL HIGH COURT IS ON A DIFFERENT STATE OF FACTS. HE SUBMITTED THAT THE ITAT ON SIMILAR ISSUE IN EARLIER YEARS HAS DECIDED THE ISSUE AGAINST THE ASSESSEE, THE ASSESSEE IS NOW IN APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT. HE REITERATED THAT THE ISSUE IS ALSO COVERED BY HONBLE APEX COURT DECISION IN GHANSH YAM HUF (SUPRA) HENCE HE SUBMITTED THAT THERE IS NO REASON FOR THE TRIBUNAL TO DEPART FROM THE VIEW TAKEN IN THE CASE OF THE SAME ASSESSEE. 9. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. THE SHORT ISSUE BEFORE ME IS WHETHER THE IN TEREST ACCRUED ON FIXED DEPOSI T S ON AMOUNT RECEIVED AS ADDITIONAL COMPENSATION IS TAXABLE. THE TRIBUNAL IN ITS ORDER DATED 30 TH MAY, 2011 FOR THE PRECEDING ASSESSMENT YEAR HAS DEALT WITH THE ISSUE AS UNDER : 11 . IN SO FAR AS THE APPEALS FOR ASSESSMENT Y EARS 1998 - 99 TO 2001 - 02 ARE CONCERNED , THE ISSUE REL A TES TO INTEREST EARNED BY THE ASSESSEE ON FORS PLACED WITH THE BANKS . THE FDRS HAVE BEEN PLACED WITH THE BANKS OUT OF THE MONEY WHICH WAS PERMITTED TO BE WITHDRAWN BY THE HON ' BLE HIGH COURT ON FURNISHING OF 8 ITA NOS. 241 TO 245/NAG/201 5 BANK GUARANTEE AND SOLVENT SECURITY TO THE SATISFACTION OF THE COURT . THE CLAIM OF . : , \ THE ASSESSEE IS THAT IF THE GOVERNMENT WAS TO SUCCEED IN ITS APPEAL BEFORE THE HON ' BLE HIGH COURT , THE ASSESSEE MAY BE CALLED UPON T O REFUND THE AMOUNT . RELEASED ALONG WITH INTEREST AND , THEREFORE , THE INTEREST EARNED ON FDRS CANNOT . BE TREATED AS AN UNQUALIFIED INCOME IN THE HANDS OF THE ASSESSEE, TILL SUCH TIME THE DISPUTE IS FINALLY DETERMINED . IN THIS CONNECTION, WE HAVE CAREFULLY PERUSED THE INTERIM ORDER OF THE HON ' BLE HIGH COURT DATED 9 . 7 . 1997 , IN TERMS OF WHICH THE ASSESSEE HAS BEEN PERMITTED TO WITHDRAW THE SUM OF RS 63,33 , 548/ - . THE RELEVANT PORTION OF THE ORDER READS AS UNDER : ' THE CIVIL APPLICATION NO . 146/9 IS FILED BY THE RESPONDENT NO . 1 TO WITHDRAW THE AMOUNT DEPOSITED IN THE EXECUTING COURT BY THE APPELLANT AS INDICATED IN THE ORDER DT . 18 . 12 . 1996 . AFTER HEARING THE LEARNED COUNSEL FOR BOTH THE SIDES AND ALSO HAVING PERUSED THE JUDGMENT REPORTED IN 1995 SUPREME COURT CASES , 219 , WE ARE INCLINED TO ALLOW THE RESPONDENT NO. 1 TO WITHDRAW THE SUM OF RS 63 , 33 , 548 / - DEPOSITED BY THE APPEL/ANT - UNION OF INDIA IN THE EXECUTING COURT . THE RESPONDENT NO . 1 IS AT LIBERTY TO WITHDRAW THE SAID AMOUNT OF RS 63 , 33 , 548/ - ON FURNISHING THE BANK GUARANTEE FOR THE AMOUNT OF RS 35 LACS AND FOR THE BALANCE AMOUNT THE SOLVENT SECURITY TO THE SATISFACTION OF THE EXECUTING COURT . ' 1 2 FROM THE AFORESAID , IT IS CLEAR THAT THE ASSESSEE HAS BEEN W I THDRAW A SUM OF RS 63 , 33 , 548/ - ON FURN I SHING OF BANK GUARANTEE FOR THE AMOUN T OF RS 35 LAKHS AND FOR THE BALANCE AMOUNT , A SOLVENT SECURITY TO THE SATISFACTION OF THE COURT . IT IS ALSO TRUE THAT IN CASE THE UNION OF INDIA WERE TO SUCCEED IN ITS APPEAL BEFORE THE HON ' BLE HIGH COURT , THE ASSESSEE WOULD BE CALLED UPON TO REFUND THE AMOUNT AS MAY BE FINALLY DETERMINED BY THE COURT . SO , HOWEVER THE ISSUE IN DISPUTE BEFORE US RELATES TO THE TAXABILITY OF INTEREST EARNED ON THE A MOUNT PERMITTED TO BE WITHDRAWN BY THE HON ' BLE HIGH COURT , AND NOT TO THE TAXABILITY OF THE AMOUNT RELEASED PER SE . THE AMOUNT EARNED BY THE ASSESSEE ON FORS PLACED WITH THE BANK OUT OF THE AMOUNT PERMITTED TO BE WITHDRAWN BY THE HIGH COURT, HAS YIELDED IN TEREST IN THE HANDS OF THE ASSESSEE. WE DO NOT FIND THAT THE INTERIM ORDER OF THE HON ' BLE HIGH COURT HAS SPECIFIED ANY OBLIGATION ON THE ASSESSEE TO REFUND SUCH INTEREST INCOME EARNED IN THE EVENT OF THE UNION OF INDIA SUCCEEDING BEFORE THE HIGH COURT . AT BEST , THE ASSESSEE IS LIABLE TO REFUND THE AMOUNT RELEASED BY THE HIGH COURT IF THE UNION OF INDIA WERE TO SUCCEED IN ITS APPEAL BEFORE THE HIGH COURT . THE INTEREST EARNED BY THE ASSESSEE ON FORS , IN OUR VIEW , ACCRUES IN THE HANDS OF THE ASSESSEE AS AN UNQUALIFIED INCOME . IN FACT , THE ASSESSEE HAS SOUGHT TO RELY UPON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PARAGON CONSTRUCT I ONS (I) P LTD (SUPRA) IN SUPPORT OF HER STAND THAT SUCH INTEREST INCOME IS NOT TAXABLE TILL FINAL DETERMINATION OF APPEAL BY THE HON ' BLE HIGH COURT. WE HAVE CAREFULLY PERUSED THE SAID JUDGMENT . IN THE CASE BEFORE THE HON ' BLE DELHI HIGH COURT , DISPUTE AROSE IN A CONTRACT BETWEEN THE ASSESSEE AND MUNICIPAL COMMITTEE , AND THE DISPUTE WAS REFERRED TO ARBITRATION . THE AR BITRATOR AWARDED CERTAIN SUM IMPOSING LIABILITY ON THE MUNICIPAL COMMITTEE TO MAKE PAYMENT TO THE ASSESSEE WITH INTEREST . THE AWARD WAS CHALLENGED BY THE MUNICIPAL COMMITTEE AND THE AMOUNT WAS DEPOSITED IN COURT . THE COURT ORDERED ON 23 . 3 . 1988 ALLOWING THE ASSESSEE TO WITHDRAW THE AMOUNT ON FURNISHING BANK GUARANTEE AND THE I SSUE WAS FINALLY DECIDED IN FAVOUR OF THE ASSESSEE ON 31.3.1995. THE DISPUTE BEFORE THE HON ' BLE DELH I HIGH COURT PERTAINED TO THE TAXABILITY OF INTEREST FOR THE ASS ESSMENT YEARS 1991 - 92 AND 1992 - 93 ON AMOUNTS WITHDRAWN. AS PER THE ASSESSEE, INTEREST ON AMOUNTS W I THDRAWN HAD NOT ACCRUED TO IT AND WAS NOT ASSESSABLE IN THE ASSESSMENT YEARS 1991 - 92 AND 1992 - 93 , BUT WAS TO BE TAXED ONLY ON FINAL DETERM I NATION OF DISPUTE BY THE COURT WHICH WAS ON 31 . 3 . 1995. THE AFORESAID PLEA OF THE ASSESSEE WAS UPHELD . AS PER THE HON'BLE HIGH COURT, THE DETERMINATIVE DATE WOULD BE THE DATE ON WHICH THE DISPUTE WAS FINALLY RENDERED BY THE COURT AND THE AMOUNT ACCRUED ONLY ON THAT DATE AND ACCORDINGLY, IT WAS HELD THAT INTEREST WAS NOT ASSESSABLE IN THE ASSESSMENT YEARS 1991 - 92 AND 1992 - 93 . ON A SIMILAR PARITY OF REASONING , THE ASSESSEE BEFORE US HAS SUBMITTED THAT THE INTEREST EARNED ON AMOUNTS WITHDRAWN CANNOT BE TAXED UNLESS THE DISPUTE IS FINALLY DETERMINE D BY THE HON'BLE H I GH COURT , WHICH IS STILL PENDING . IN OUR CONSIDERED OPINION, THE RATIO OF THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PARAGAON CONSTRUCTION (I) P LTD. (SUPRA) CANNOT BE APPLIED ON ALL FOURS IN THE PRESENT CASE . IT IS CLEA R FROM A PERUSAL OF THE JUDGMENT OF PARAGAON CONSTRUCTION (I) P LTD . (SUPRA) THAT THE COURT HAD PERMITTED THE AMOUNT TO BE WITHDRAWN NOT ONLY ON FURNISHING OF BANK GUARANTEE , BUT ALSO WITH AN ADDITIONAL STIPULATION THAT THE ASSESSEE WAS LIABLE TO REFUND SU CH AMOUNT ALONGWITH INTEREST , IN CASE THE MUNICIPAL COMMITTEE WAS TO SUCCEED . IN THE PRESENT CASE, AS IS EVIDENT FROM THE ORDER OF THE HON'BLE HIGH COURT DATED 9.7 . 1997 THERE IS NO STIPULATION THAT IN CASE THE UNION OF INDIA WERE TO SUCCEED BEFORE THE HON' BLE HIGH COURT, THE ASSESSEE WAS TO REFUND THE AMOUNT ALONGWITH INTEREST . 9 ITA NOS. 241 TO 245/NAG/201 5 IN THE ABSENCE OF ANY SUCH STIPULATION , IT CANNOT BE SAID THAT THE IMPUGNED INTEREST EARNED BY THE ASSESSEE ON THE FORS CREATED WITH THE AMOUNTS PERMITTED TO BE WITHDRAWN BY THE HON ' BLE HIGH C OURT , CARRY ANY OBL I GATION OF BEING REFUNDED . THE PLEA OF THE ASSESSEE THAT SHE MAY BE CALLED UPON TO REFUND THE AMOUNT ALONG WITH INTEREST IF THE UNION OF INDIA WERE TO SUCCEED BEFORE THE HIGH COURT IS ONLY IN THE REALM OF FUTURE POSSIBILITY , WHICH IS CONTINGENT UPON SUBSEQUENT HAPPENING AND THE SAME CANN O T BE CONSTRUED TO HAVE MANIFESTED PRESENTLY . IF AND WHEN SUCH CONTINGENCY MAY ARISE , IT IS ONLY THEN THE LIABILITY TO PAY WOULD ARISE ON THE ASSESSEE AND NOT BEFORE THAT . FOR THE PRESENT , HAVI N G REG A RD T O THE TERMS AND CONDITIONS PERMITTINGW I THDRAWAL OF AMOUNTS BY THE HON ' BLE HIGH COURT , IT DOES NOT SHOW ANY OBLIGATION ON THE PART OF THE ASSESSEE TO REFUND THE IMPUGNED INTEREST INCOME . IN THE CASE OF PARAGON CONSTRUCTION (I) P LTD . (SUPRA) BEFORE THE HON ' BLE DELHI HIGH COURT , SUCH A STIPUL A TI O N WAS P RE VA LENT, WHICH IS ABSENT IN THE PRESENT CASE. UNDER THESE CIRCUM S T A N CES , IN OUR VIEW, THE DECISION OF THE HON ' BLE DELHI HIGH COURT IN THE CASE OF PAR AG AON CONSTRUCTION (I) P LTD . DOES NOT HELP T HE ASSESSEE . IN THE PRESENT CASE , THE AMOUNTS HAVE BEEN PERMITTED TO BE WITHDRAWN AND THE SAME . , HAVE BEEN PLACED IN FORS WITH BANKS BY THE ASSESSEE ON HER OWN VOLITION AND IN1EREST EARNED ON SUCH FORS , IN OUR VIEW , ACCRUES IN THE HANDS OF THE ASSESSEE IS , THEREFORE , LIABLE TO BE TAXED IN THE RESPECTIVE YEARS . THEREFORE , IN OUR ' CONS I DERED OPINION , THE COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN DELETING THE AMOUNTS ADDED BY THE ASSESSING OFFICER AS INTEREST INCOME ON FORS FOR THE ASSESSMENT YEARS 19 98 - 99, 1999 - 2000 , 2000 - 01 AND 2001 - 02 AMOUNTING TO RS 3 , 40 , 547/ - , RS 7 , 37 , 7401 - , RS 7 , 77 , 398/ - AND RS 10,88,562/ - RESPECTIVELY . ACCORDINGLY , FOR THE ASSESSMENT YEARS 1998 - 99 , 1999 - 00,2000 - 01 AND 2001 - 02 , THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) IS SET ASIDE AND THAT OF THE ASSESSING OFFICER IS RESTORED . 10. NOW AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT . IT IS UNDISPUTED THAT FACTS ARE IDENTICAL. NOW IT IS THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESSEE THAT THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF DSL ENTERPRISES P. LTD. (SUPRA) HAS COME AFTER THE ITATS ORDER WHICH IS IN FAVOUR OF THE ASSESSEE. HENCE IT IS PLEADED THAT THE ISSUE MAY BE DECIDED IN FAVOUR OF THE ASSESSEE. HERE IT MAY BE GAINFUL FOR ME TO REFER TO THE ADJUDICATION BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE ABOVE CASE AS UNDER : 10. THE FACTS WHICH HAVE BEEN NARRATED IN THE EARLIER PART OF THE JUDGMENT WOULD INDICATE THAT THE CHALLENGE TO THE ARBITRAL AWARD I S PENDING IN APPEAL AND THE AWARD IS YET TO ATTA I N FINALITY. THOUGH THE LEARNED SINGLE JUDGE OF THIS COURT D I SM I SSED A PET I T ION F I LED BY MSEDC CHALLENG I NG THE ARBITRAL AWARD , THE APPEAL FI L ED BY MSEDC HAS BEEN ADMITTED. A DIVIS I ON BENCH OF THIS COURT GRANTED A STAY ON THE EXECUT I ON OF THE AWARD SUB J ECT TO MSEDC DEPOSITING A N AMOUNT OF RS . 179 CRORES AND FURNISHING A BANK GUARANT EE FOR RS . 86 CRORES . TH I S ORDER WAS MOD I F I ED I N APPEAL BY THE SUPREME COURT . UNDER THE ORDER OF THE SUPREME COURT, MSEDC WAS R EQU I RED TO DEPOS I T RS.65 CRORES AND D SL WAS PERMITTED TO WITHDRAW THE AMOUNT SO DEPOSITED SUBJECT TO FURNISH I NG A BANK GUARANTEE TO THE SATISFACT I ON OF THE PROTHONOTARY & SENIOR MASTER. CONSEQUENTLY , THE R E CAN BE NO MANNER OF DISPUTE EVEN AS A MATTER OF F I RST PRINCIPLE , ABOUT THE FACT THAT THE AMOUNT OF RS . 65 CRORES WHICH WAS PERMITTED TO BE W I THDRAWN AGA I NST A BANK GUARANTEE FOR AN EQU I VALENT AMOUNT DOES NOT REPRESENT 10 ITA NOS. 241 TO 245/NAG/201 5 I NCOME WHICH HAS ACCRUED TO D SL . SO LONG AS THE CHALLENGE TO THE ARBITRAL AWARD I S ALIVE AND I S PENDING, AND THE LEGALITY OF THE ARB I TRAL AWARD HAS NOT ATTAINED FINALITY, THE AMOUNT WHICH HAS BEEN AWARDED DOES NOT REPR ESENT INCOME WHICH HAS ACCRUED. UPON THE WITHDRAWAL OF THE AMOUNT BY D SL, THE AMOUNT HAS BEEN INVESTED IN A FIXED DEPOSIT OF INDIAN BANK WHICH HAS MARKED A LIEN TO THE EXTENT OF RS.65 CRORES; THIS CORRESPONDS TO THE AMOUNT OF THE BANK GUARANTEE WHICH IT HA S FURNISHED. THE INTEREST WHICH HAS ACCRUED ON THE AMOUNT OF THE FIXED DEPOSIT CANNOT BE REGARDED AT THIS STAGE AS INCOME WHICH HAS ACCRUED TO THE PETITIONER. IN VIEW OF THE PROVISIONS OF SECTION 144 OF THE CODE OF CIVIL PROCEDURE, 1908, IF THE DECREE IN TERMS OF THE AWARD IS VARIED OR REVERSED IN APPEAL, THE COURT WHICH PASSED THE DECREE OR ORDER IS UNDER A MANDATE ON THE APPLICATION OF ANY PARTY ENTITLED TO ANY BENEFIT BY WAY OF RESTITUTION OR OTHERWISE TO CAUSE SUCH RESTITUTION TO BE MADE SO AS TO PLACE THE PARTIES IN THE POSITION WHICH THEY WOULD HAVE OCCUPIED BUT FOR SUCH DECREE OR ORDER . THE COURT IS EMPOWERED TO MAKE ANY ORDERS INCLUDING ORDERS FOR THE REFUND OF COSTS AND FOR THE PAYMENT OF INTEREST . 11 . THE BASIS ON WHICH A SHOW CAUSE NOTICE WAS ISSUED TO THE PETITIONER ON 21 JANUARY 2013 IS THAT WHAT WAS DISPUTED BEFORE THE DIVISION BENCH OF THIS COURT I S ONLY THE QUANTUM OF COMPENSATION. THE SHOW CAUSE NOTICE ALSO PROCEEDED ON THE BASIS THAT THE PETITIO NER HAS ABSOLUTE OWNERSHIP OF THE FUNDS TO THE EXTENT OF RS.65 CRORES. THERE IS A FALLACY IN BOTH THESE ASSUMPTIONS . THE SCOPE OF THE APPEAL BEFORE THE DIVISION BENCH IS THE VALIDITY OF THE ORDER OF THE LEARNED SINGLE JUDGE DISMISSING THE OBJECTION TO THE ARBITRAL AWARD AND IT IS NOT ONLY THE QUANTUM OF COMPENSATION WHICH IS IN DISPUTE IN THE LETTERS PATENT APPEAL THAT HAS BEEN FILED AGAINST THE ORDER OF THE LEARNED SINGLE JUDGE. MOREOVER, IT WOULD BE FALLACIOUS TO POSTULATE THAT THE PETITIONER HAS ABSOLUTE OWNERSHIP OF THE FUNDS TO THE EXTENT OF RS . 65 CRORES. EVEN THE IMPUGNED ORDER OF THE ITO (TDS - I) PROCEEDED ON THE FALLACIOUS ASSUMPTION THAT THE PETITIONER HAS AN ABSOLUTE RIGHT TO RECEIVE AN AMOUNT OF INTEREST. SO LONG AS AN APPEAL AGAINST THE ORDER OF T HE LEARNED SINGLE JUDGE ON THE ARBITRATION PETITION IS PENDING, THE PE T ITIONER DOES NOT HAVE AN ABSOLUTE ENTITLEMENT EITHER TO RETAIN THE AMOUNT OF RS.65 CRORES OR THE INTEREST WHICH HAS BEEN REALISED IN RESPECT OF THE FIXED DEPOSIT PLACED WITH INDIAN BANK . 12. UNDER THE INCOME TAX ACT, 1961, INCOME CHARGEABLE TO TAX IS INCOME THAT IS RECEIVED OR IS DEEMED TO BE RECEIVED IN INDIA IN THE PREVIOUS YEAR RELEVANT TO THE YEAR IN WHICH ASSESSMENT IS MADE OR THE INCOME THAT ACCRUES OR ARISES OR IS BEING ACCRUED I N INDIA DURING S U CH YEAR . IN CIT VS. SHOORJI VALLABHDAS AND CO., (1962) 46 ITR 144 THE SUPREME COURT HELD THAT ' THE SUBSTANCE OF THE MATTER IS THE INCOME'. SIMILARLY IN POONA ELECTRIC SUPPLY CO. LTD. VS. CIT, (1965) 57 ITR 521 THE SUPREME COURT HELD THAT ' INCOME - TAX IS A TAX ON THE REAL INCOME I.E., THE PROFITS ARRIVED AT ON COMMERCIAL PRINCIPLES SUBJECT TO THE PROVISIONS OF THE INCOME TAX ACT .' . THESE PRINCIPLES WERE FOLLOWED BY THE SUPREME COURT IN THE JUDGMENT IN GODHRA ELECTRICITY CO. LTD. VS. COMMISSIO NER OF INCOME TAX, (1997) 225 ITR 746 IN HOLDING THAT EVEN THOUGH THE ASSESSEE WAS FOLLOWING A MERCANTILE SYSTEM OF ACCOUNTING AND HAD MADE ENTRIES IN ITS BOOKS REGARDING ENHANCED CHARGES FOR THE ELECTRIC SUPPLY MADE TO THE CONSUMERS, NO REAL INCOME HAD AC CRUED IN RESPECT OF THOSE ENHANCED CHARGES IN VIEW OF THE FACT THAT SOON THEREAFTER THE ASSESSEE HAD BEEN SUBJECTED TO LITIGATION IN A SUIT FILED BY THE CONSUMERS . THE SUPREME COURT HELD THAT 'THE QUESTION WHETHER THERE WAS REAL ACCRUAL OF INCOME TO THE AS SESSEE - COMPANY IN RESPECT OF ENHANCED CHARGES FOR SUPPLY OF ELECTRICITY HAS TO BE CONSIDERED BY TAKING THE PROBABILITY OR IMPROBABILITY OF REALISATION IN A REALISTIC MANNER'. THE SUPREME COURT HELD THAT THE CLAIM AT INCREASED RATES ON THE BASIS OF WHICH NE CESSARY ENTRIES WERE MADE REPRESENTED ONLY HYPOTHETICAL INCOME AND THE AMOUNTS AS BROUGHT TO TAX BY THE INCOME TAX OFFICER DID NOT REPRESENT THE INCOME WHICH HAD REALLY ACCRUED TO THE ASSESSEE - COMPANY DURING THE RELEVANT PREVIOUS YEARS'. IN COMMISSIONER O F INCOME TAX VS. HINDUSTAN HOUSING AND LAND DEVELOPMENT TRUST LTD., (1986) 161 ITR 524 THE SUPREME COURT CITED WITH APPROVAL THE FOLLOWING PRINCIPLE LAID DOWN IN KHAN BAHADDUR AHMED ALLADIN & SONS VS. C.I . T. , (1969) 74 ITR 651 'INCOME - TAX IS NOT LEVIED ON A MERE RIGHT TO RECEIVE COMPENSATION; THERE MUST BE SOMETHING 11 ITA NOS. 241 TO 245/NAG/201 5 TANGIBLE, SOMETHING IN THE NATURE OF A DEBT, SOMETHING IN THE NATURE OF AN OBLIGATION TO PAY AN ASCERTAINED AMOUNT. TILL SUCH TIME, NO INCOME CAN BE SAID TO HAVE ACCRUED .. . ' 13. THE SUBMISSION OF THE REVENUE IS THAT THE ORDER OF THE SUPREME COURT ONLY REQUIRED THE PETITIONER TO FURNISH A BANK GUARANTEE OF RS.65 CRORES IN RESPECT OF THE AMOUNT WHICH WAS DEPOSITED BY THE MSEDC AND WITHDRAWN. HOWEVER, IT IS URGED THAT THER E WAS NO DIRECTION IN REGARD TO THE INTEREST WHICH WOULD ACCRUE ON THE AMOUNT OF RS.65 CRORES AND THERE IS NO LINK AS SUCH BETWEEN THE FIXED DEPOSIT UPON WHICH I NTEREST HAS BEEN EARNED AND THE BANK GUARANTEE WHICH WAS REQUIRED TO BE FURNISHED FOR THE WITH DRAWAL OF RS.65 CRORES. IN OUR VIEW, IT WOULD NOT BE POSSIBLE TO ACCEDE TO THE SUBMISSION FOR THE SIMPLE REASON THAT THE INTEREST ON THE F I XED DEPOSIT DOES NOT REPRESENT A CRYSTALLISED ENTITLEMENT OF THE PETITIONER DURING THE FINANCIAL YEAR IN QUESTION. T HE PETITIONER WOULD HAVE AN INDEFEASABLE ENTITLEMENT IN RESPECT OF THE PRINCIPAL AMOUNT OF RS.65 CRORES AS WELL AS THE INTEREST EARNED ONLY IF THE PROCEEDINGS WHICH ARE PENDING IN REGARD TO THE CHALLENGE TO THE ARBITRAL AWARD CONCLUDE IN ITS FAVOUR . UNLES S THOSE PROCEED I NGS ATTA I N FINALITY, THE PETITIONER WOULD BE SUBJECT TO A POSSIBLE ORDER OF RESTITUTION NOT MERELY IN RESPECT OF THE PRINCIPAL AMOUNT OF RS.65 CRORES, BUT ALSO THE INTEREST WHICH HAS BEEN GENERATED ON THE AMOUNT WITHDRAWN IN VIEW OF THE MAN DATE OF SECTION 144 OF THE CODE OF CIVIL PROCEDURE, 1908 TO PROVIDE RESTITUTION IF A DECREE IS MODIFIED IN APPEAL. IN THAT VIEW OF THE MATTER, IT WOULD BE WHOLLY UNREASONABLE TO DEDUCT TAX AT SOURCE ON AN AMOUNT WHICH HAS NOT ACCRUED TO THE PET I T I O N ER AS I NCOME DURING THE F I NA N C I AL YEAR I N QUEST I ON , THE ENTITLEMENT OF THE PET I T I ONE R BE I NG CO NTIN GENT ON THE OUTCOME OF T H E C HALLENGE TO T HE ARBITRAL AWA R D. MO R EOVER , I T H AS A L SO N OT BEEN D I SPUTED ON BEHALF OF THE PET I T I ONER AND IT IS FA I RLY CONCEDED BY COUNSE L FOR T HE PETIT I ONER THAT IF THE CHALLENGE TO THE ARB I TRAL AWARD ENDS I N FAVOUR OF THE PET I T I ONER , THE REVENUE W OULD BE ENTITLED TO BRI N G TO TAX THE AMOUNT ACCRUED I N THE CORRESPOND IN G YEA R . 1 4 . F OR TH E SE R EA S ONS WE A R E O F THE VIE W THAT T H E ITO ( TDS - I ), NASH IK W AS NOT JUS TIF I ED I N DE NYI N G A C E RT IFICATE UNDE R SECT I ON 197 DESP I TE THE FACT THAT SUCH A CERT IFI CATE HAS BEEN I SSUED EA RLI E R F OR THREE PRECEDING F.YS. 2009 - 10, 2010 - 11 AND 2011 - 12. HAVING REGARD TO THE SEVERA L O R DE R S O F R EMAND THAT HAVE BEEN PASSE D BY THE COURT ON TWO PREV I OUS OCCAS I ONS, NO U SEFU L PURP OSE WILL BE SERVED BY A FURTHE R ORDER OF REMAND. NO OTHER OBJECTION T O THE GRANT OF A CE RTIFI CATE UNDER SECTION 197 HAS BEEN ASSERTED ON BEHALF OF THE REVENUE AT THE HEAR I NG. WE ACCORD I NGLY MAKE THE R ULE ABSOLUTE BY DIRECT I NG THE FIRST RESPONDENT TO ISSUE A CERTIFICATE UNDER SEC TI ON 197 FOR FINAN ~ YEAR 2012 - 13 . RU L E I S MADE ABSOLUTE IN THESE TERMS. THERE S H ALL BE N O ORDER AS TO COSTS . 11. I HAVE CAREFULLY CONSIDERED THE ABOVE CASE LAW AND THE OTHER SUBMISSIONS AND CASE LAWS REFERRED BY THE LEARNED COUNSEL OF THE ASSESSEE. I FIND THAT EARLIER THE IDENTICAL ISSUE WAS DECIDED BY THE TRIBUNAL IN ASSESSEES FAVOUR IN ASSESSMENT YEAR 1996 - 97 TO 2001 - 02 VIDE ORDER DATED 17 - 03 - 2006 . THE SAID DECISION WAS SET ASIDE BY THE HONBLE JURISDICTIONAL HIGH COURT VIDE ORDER DATED OCTOBER 8, 2010. IN THIS ORDER THE HONBLE HIGH COURT HAS HELD AS UNDER : HEARD LEARNED COUNSEL FOR THE PARTIES. 2) IN ALL THESE APPEALS, THE QUESTION RAISED BY THE REVENUE IS WHETHER THE INCOME TAX APPELLATE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE 12 ITA NOS. 241 TO 245/NAG/201 5 INTEREST RECEIVED ON THE ENHANCED AMOUNT OF COMPENSATION AS WELL AS INTEREST RECEIVED ON THE AMOUNT OF FIXED DEPOSIT ARE NOT TAXABLE UNDER THE PROVISIONS OF THE INCOME TAX ACT, 1961. 3) THE LEARNED COUNSEL ON BOTH SIDES A GREE THAT IN THE LIGHT OF JU DGMENT OF THE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME TAX V. GHANSHYAM (HUF) (2009) 315 ITR 1 (SC), THE DECISION OF THE TRIBUNAL MAY BE QUASHED AND SET ASIDE AND THE MATTER MAY BE REMANDED BACK TO THE TRIBUNAL FOR DECIDING THE ISSUE AFRESH IN ACCORDANCE WITH LAW. 4) ACCORDINGLY, IN ALL THESE APPEALS, THE IMPUGNED ORDERS PASSED BY THE INCOME TAX APPELLATE ARE QUASHED AND SET ASIDE. THE TRIBUNAL IS DIRECTED TO DISPOSE OF THE APPEALS ON MERITS AND IN ACCORDANCE WITH LAW. THE CONTENTIONS OF BOTH THE SIDES ARE KEPT OPEN. 5) THE APPEALS ARE DISPOSED OF. NO ORDER AS TO COSTS. 12. THEREAFTER THE MATTER WAS TAKEN BY THE TR IBUNAL . I N ORDER DATED 30 TH MARCH, 2011, WHICH HAS BEEN REPRODUCED IN PARA 9 OF THIS ORDER, IT WAS INTER ALIA HELD THAT INTEREST EARNED BY THE ASSESSEE ON FDRS ACCRUED IN THE HANDS OF THE ASSESSEE AS AN UNQUALIFIED INCOME. 13. NOW IT TRANSPIRES THAT THE I SSUE IS COVERED IN FAVOUR OF THE REVENUE BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER YEARS. THE ASSESSEE HAS FILED APPEAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT . TILL THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT COMES, JUD ICIAL PROPRIETY DEMANDS THAT I FOLLOW THE DECISION OF THE TRIBUNAL AS ABOVE. HOWEVER, IT IS THE PLEA OF THE LEARNED COUNSEL OF THE ASSESSEE THAT A SUBSEQUENT DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF DSL ENTERPRISES PVT. LTD. (SUPRA) NOW SUP PORTS THE CASE OF THE ASSESSEE. I HAVE HEARD BOTH THE COUNSEL AND GONE THROUGH THE DECISION AND THE RECORDS. I FIND THAT FACTS IN THE SAID CASE WERE DIFFERENT. T HE SAID CASE OF DSL ENTERPRISES PERTAINED TO THE EXECUTION OF AWARD SUBJECT TO MSEDC DEPOSITIN G AN AMOUNT OF RS.179 CRORES AND FURNISHING A BANK GUARANTEE OF RS. 86 CRORES . T HE ORDER WAS MODIFIED IN APPEAL BY THE HONBLE SUPREME COURT. IN THE ORDER OF THE HONBLE SUPREME COURT THE MSEDC WAS 13 ITA NOS. 241 TO 245/NAG/201 5 REQUIRED TO DEPOSIT RS.65 CRORES AND DSL ENTERPRISES PVT. LTD. WAS PERMITTED TO WITHDRAW THE AMOUNT SO DEPOSITED SUBJECT TO FURNISHING A BANK GUARANTEE. IN SUCH SITUATION HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT CONSEQUENTLY THERE CAN BE NO MANNER OF DISPUTE EVEN AS A MATTER OF FIRST PRINCIPLE ABOUT THE F ACT THAT THE AMOUNT OF RS.65 CRORES WHICH WAS PERMITTED TO BE WITHDRAWN AGAINST A BANK GUARANTEE FOR AN EQUIVALENT AMOUNT DOES NOT REPRESENT INCOME WHICH HAS ACCRUED TO DSL. SO LONG AS THE CHALLENGE TO THE ARBITRAL AWARD IS ALIVE AND IS PENDING, AND THE L EGALITY OF THE ARBITRAL AWARD HAS NOT ATTAINED FINALITY, THE AMOUNT WHICH HAS BEEN AWARDED DOES NOT REPRESENT INCOME WHICH HAS ACCRUED. UPON THE WITHDRAWAL OF THE AMOUNT BY DSL, THE AMOUNT HAS BEEN INVESTED IN A FIXED DEPOSIT IN INDIAN BANK WHICH HAS MARKE D A LIEN TO THE EXTENT OF RS.65 CRORES; THIS CORRESPONDS TO THE AMOUNT OF THE BANK GUARANTEE WHICH IT HAS FURNISHED. THE INTEREST WHICH HAS ACCRUED ON THE AMOUNT OF THE FIXED DEPOSIT CANNOT BE REGARDED AT THIS STAGE AS INCOME WHICH HAS ACCRUED TO THE PETI TIONER. 14. FROM THE ABOVE IT IS EVIDENT THAT THE SAID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT WAS ON THE PREMISE THAT THE AMOUNT WHICH HAS BEEN AWARDED DOES NOT REPRESENT INCOME WHICH HAS ACCRUED. HOWEVER, IN THE PRESENT CASE FACTS ARE DIFFEREN T. THE ORIGINAL ISSUE IS ACCRUAL OF ADDITIONAL COMPENSATION AND AS PER THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF) 315 ITR 1 (SC) SUCH ADDITIONAL COMPENSATION ACCRUES AS INCOME OF THE ASSESSEE IN THE YEAR OF RECEIPT. I MAY GAINFULLY REFER THE HEAD NOTES OF TH IS APEX COURT DECISION IN THIS REGARD AS UNDER : THE SCHEME OF SECTION 45(5) AND SECTION 155(16) OF THE INCOME - TAX ACT, 1961, IS THIS. SECTION 45(5) WAS INSERTED WITH EFFECT FROM APRIL 1, 1988, AS AN OVERRIDING PROVISION. SINCE COMPENSATION UNDER THE LAND ACQUISITION ACT, 1894 ARISES AND IS PAYABLE IN MULTIPLE STAGES, THE LEGISLATURE STEPPED IN AND SAID THAT AS AND WHEN THE ASSESSEE - CLAIMANT IS IN RECEIPT OF ENHANCED COMPENSATION IT SHALL BE TREATED AS DEEMED IN COME AND TAXED ON RECEIPT BASIS. HENCE, THE YEAR IN WHICH ENHANCED COMPENSATION IS RECEIVED IS THE YEAR OF TAXABILITY. CONSEQUENTLY, EVEN IN CASES WHERE PENDING APPEAL, THE COURT / TRIBUNAL / AUTHORITY BEFORE WHICH THE APPEAL IS PENDING, PERMITS THE CLAIM ANT TO WITHDRAW AGAINST SECURITY OR OTHERWISE THE ENHANCED COMPENSATION (WHICH IS IN DISPUTE), THE SAME IS LIABLE TO BE TAXED UNDER SECTION 45 (5) OF THE ACT IN THE YEAR OF RECEIPT. EVEN 14 ITA NOS. 241 TO 245/NAG/201 5 BEFORE THE INSERTION OF SECTION 45(5) (C) AND SECTION155(16)WITH EFFE CT FROM APRIL 1, 2004, THE RECEIPT OF ENHANCED COMPENSATION UNDER SECTION 45(5)(B) WAS TAXABLE IN THE YEAR OF RECEIPT AND THIS IS REINFORCED BY INSERTION OF CLAUSE (C). COMPENSATION, INCLUDING ENHANCED COMPENSATION/ CONSIDERATION UNDER THE LAND ACQUISITI ON ACT, 1894, IS BASED ON THE FULL VALUE OF THE PROPERTY ON THE DATE OF THE NOTIFICATION UNDER SECTION 4 OF THAT ACT. WHEN THE COURT/TRIBUNAL DIRECTS PAYMENT OF ENHANCED COMPENSATION UNDER SECTION 23 (1A) OR SECTION 23(2) OR UNDER SECTION 28, IT IS ON THE BASIS THAT THE AWARD OF THE COLLECTOR OR THE COURT, UNDER REFERENCE, HAS NOT COMPENSATED THE OWNER FOR THE FULL VALUE OF THE PROPERTY AS ON THE DATE OF THE NOTIFICATION. THUS FROM THE ABOVE IT IS CLEAR THAT THE DISTINGUISHING FACT BETWEEN THIS ASSESSEES CASE AND THAT OF THE DECISION OF DSL ENTERPRISES PVT. LTD. (SUPRA) IS THAT THE ADDITIONAL COMPENSATION RECEIVED BY THE ASSESSEE IN THE PRESENT CASE HAS ACCRUED AS INCOME OF THE ASSESSEE WHILE IN THE CASE OF THE ASSESSEE IN DSL ENTERPRISES PVT. LTD.S CASE (SUPRA) THE AWARD HAD BEEN HELD TO HAVE NOT ACCRUED TO THE ASSESSEE. IN SUCH SITUATION WHEN THE SOURCE OF INTEREST WHICH IS THE ADDITIONAL COMPENSATION RECEIVED IS HELD TO BE INCOME ACCRUED IN THE HANDS OF THE ASSESSEE FOR THI S ASSESSMENT YEAR, IT WOULD FOLLOW THAT INTEREST OR ANY INCOME ARISING OUT OF THE UTILIZATION OF THE ADDITIONAL COMPENSATION BY WAY OF FIXED DEPOSIT OR OTHEREWISE WOULD ALSO BE INC OME ACCRUED IN THE HANDS OF THE ASSESSEE. IN SUCH SITUATION, IN MY CONSIDE RED OPINION, THIS CASE LAW FROM THE HONBLE JURISDICTIONAL HIGH COURT AS REFERRED BY THE LEARNED COUNSEL OF THE ASSESSEE IS NOT APPLICABLE ON THE FACTS OF THE CASE. IN SUCH SITUATION, IN MY CONSIDERED OPINION, JUDICIAL PROPRIETY DEMANDS THAT I FOLLOW THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER YEARS WHICH ITSELF IS BASED UPON DIRECTION OF THE HONBLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE. IN 15 ITA NOS. 241 TO 245/NAG/201 5 SUCH SITUATION I UPHOLD THE ORDER OF LEARNED CIT(APPEALS) AND DECIDE THE ISSUE AGAINST THE ASSESSEE. 15. IN THE RESULT, THESE APPEALS FILED BY THE ASSESSEE STANDS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH D AY OF FEBRUARY, 2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 24 TH FEBRUARY, 2016. COPY FORWARDED TO : 1. SMT. PREMLATA PURUSHOTTAM PALDIWAL, PALDIWAL HOSPITAL NURSING HOME, GIRIPETH, AMRAVATI ROAD, NAGPUR. 2. I.T.O., WARD - 1(3), NAGPUR. 3. C.I.T., NAGPUR. 4. CIT(APPEALS) - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE.