Arindam Sinha, j. - (1.) The Court: Mr. Khaitan, learned senior advocate appearing for appellants proceeds with his argument. On addition of Rs.6.97 crores he submits without prejudice to his contention that the Commission could not have traveled beyond matters covered by the application since any other matter relating to the case not covered by the application was not reported by the Commission.
(2.) He submits, by letter dated 24th February, 2014 his client had brought to notice of the Commission, clause (iv) in section 28, Income Tax Act, 1961 to have no application for purpose of adding said sum. He refers to paragraph 8.5 in the Commission's order, impugned in the writ petition, to submit, it is because of absence of report that the Commission took liability shown in previous year to be zero in the first year of years under reference. It proceeded on the basis that assessee thereby got a benefit. He relies on judgment of Supreme Court in Commissioner Vs. Mahindra and Mahindra Limited reported in (2018) 404 ITR 1 (SC), paragraphs 12 and 13. Supreme Court in paragraph 13 said, inter alia, also, "in order to invoke the provisions of section 28(iv) of the Income Tax Act, the benefit which is received has to be in some other form rather than in the shape of money."
(3.) He demonstrates from paragraph 8.5 in the Commission's order, this sum of money was treated as benefit and thereby also the Commission was clearly wrong apart from not dealing with the explanation tendered, leading to violation of principles of natural justice. He submits further, this addition could not also be made under provision in sub-section (1) of section 41. Of course, that provision was not referred to by the Commission in paragraph 8.5.;