2003 TAX. L. R. 1027 ::(2002) 178 CurTaxRep 83 ::(2003) 259 ITR 520 ::(2003) 132 Taxman 51 ::(2002) 171 Taxation 664

Gujarat High Court

Hon'ble Judge(s): M. S. Shah, K. A. Puj , JJ

Income-tax Act (43 of 1961) , Ss.41(1), 28(iv), 176(3-A), 170(1)(b)— Income - Assessee company one of the partners of dissolved firm taking over the business of said firm as going concern - Subsequent receipt of sales tax refund, against sales tax paid by dissolved firm - Cannot be included in total income of assessee by invoking Ss. 41(1), 28(iv), 176(3-A) or 170(1)(b) of I. T. Act. Where the assessee company one of the partners of dissolved firm took over the business of said firm as going concern, subsequent receipt of sales tax refund, against sales tax paid by dissolved firm cannot be included in total income of assessee company by invoking S. 41(1), 28(iv), 176 (3-A), or 170(1)(b) of Income-tax Act (1961). Since in the present case, the identity of the assessee is changed and the refund is received by the successor firm, the provisions contained in S. 41(1) are not applicable and the amount of sales-tax refund received by the assessee firm cannot be taxed by invoking the provisions of S. 41(1) of the Act. 1971 Tax LR 1767 (SC) : 1990 Tax LR 1003 (SC). Foll.(Para 7 8 9 15) As far as applicability of S. 28(iv) is concerned, it is only if the benefit or perquisite is not in cash or money that S. 28(iv) would apply and the question of including the ....