Judgment :- 1. This appeal by the revenue challenges the order dated 18th October, 2012 of the Income Tax Appellate Tribunal, Bench at Mumbai in Income Tax Appeal No.4263 of 2011. The assessment year is 2007-08. 2. The revenue had filed an appeal in the tribunal challenging the order dated 25th February, 2011 of the Commissioner of Income Tax (Appeals) Mumbai. 3. The grounds of appeal as raised before the tribunal and pressed before us relate to deletion of addition made on account of loan waived by the banks in favour of the respondent assessee in one time settlement amounting to Rs.4,40,22,653/-. 4. The argument was that the Commissioner erred in not appreciating the fact that the principal amounts of loans retained by the assessee on account of one time settlement, constituted its income as per section 28(iv) of the Income Tax Act, 1961 though not under Section 41(1) of the said Act. 5. Before us, however, Mr.Pinto submits that the appeal raises substantial questions of law. They are formulated by Mr.Pinto as under : Whether in law and on the facts of the instant case, was the Tribunal right in holding that the waiver of the loan was not taxable, when Section 28(iv) seeks to bring to tax the value of any benefit arising from any business ? Whether in law and on the facts of the instant case, was the Tribunal right in holding that loan waived was of capital content, without appreciating that fact of the waiver accrued as a taxable benefit in the hands of the firm ? Whether in law and on the facts of the instant case, was the Tribunal right in ignoring the fact that the loan used to purchase assets on which depreciation was claimed, thereby this waiver represented an allowance or deduction as per the provisions of Section 41(1) ?" 6. Mr. Pinto invites our attention to section 28(iv) of the Income Tax Act and submits that this section enumerates the income which shall be chargeable to tax under the head business or profession and that inter alia includes value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession. Mr. Pinto invites our attention to section 28(iv) of the Income Tax Act and submits that this section enumerates the income which shall be chargeable to tax under the head business or profession and that inter alia includes value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession. In his submission, the benefit is derived by the waiver granted to the assessee and in the present case waiver of loan to the extent of Rs.3.06 crores by the ICICI bank is in issue. The tribunal has held that insofar as the other bank is concerned, namely, Abu Dhabi Commercial Bank (ADCB), there, the amount is taxable as it was advanced by the bank for stock in trade. In the present case, the amount may have been advanced for purchasing machinery but that amount was eventually waived off. In the circumstances, it would not be treated as capital receipt. He, therefore, contends that the tribunal's approach raises above questions of law and which are substantial in nature. 7. On the other hand Mr.Jhaveri appearing on behalf of the assessee submits that the tribunal has in the peculiar facts and circumstances of the case, when the ADCB waived loan of Rs.1.33 crores which was offered to tax, had came to the conclusion that in the case of ICICI bank, the waiver of loan of Rs.3.06 crores is for the asset revival of a sick company. The loan may have been availed for the capital assets like machinery but as held by this Court, the cessation of liability to repay the loan to purchase a capital asset does not result in a revenue receipt and it is not taxable under section 28(iv) of the Income Tax Act. It is this consistent view of this Court which is followed and applied in the given facts and circumstances. Hence, the appeal does not raise any substantial question of law and should be dismissed. 8. We have heard both sides and with their assistance perused the paper book. It is not the argument of Mr. Pinto that the ground as noted in paragraph 1 of the tribunal's order and particularly at Page 40 ground no.5 was not the one which was forming part of the memo of appeal before the tribunal. 8. We have heard both sides and with their assistance perused the paper book. It is not the argument of Mr. Pinto that the ground as noted in paragraph 1 of the tribunal's order and particularly at Page 40 ground no.5 was not the one which was forming part of the memo of appeal before the tribunal. There, the revenue specifically argued that the amount of loan retained by the assessee on account of one time settlement with the banks constituted its income as per the Section 28(iv) of the Income Tax Act though not under Section 41 (1) of the said Act. In such circumstances we do not see any justification for raising the question of law and particularly formulated as question no.3 above. We do not think that the said question arises for determination and consideration in the background facts. 9. The only argument then remains is that return of income and which was filed on 31st October, 2007 by the company which is in the business of manufacturing cloth and textile declared the loss of Rs.9.87 crores after claiming set-off of brought forward losses of earlier years to the tune of Rs.20.03 crores and claiming allowance of interest and disallowed in earlier years (Rs.14.8 crores). This return was processed initially under section 143(3) of the Act and subsequently selected for scrutiny. The assessment was finalised and the Assessing Officer (AO) passed an order on 30th December, 2009 determining total income at Nil. 10. Thereafter, it was noted by the tribunal that during the course of assessment proceedings, the assessee filed revised return of income on 20th October, 2009. In the original return of income it had disclosed income from other sources at Rs.20.19 crores. Before the Assessing Officer, it was urged that this income arose on account of one time settlement with two banks from which it had taken loans. The said amount was shown in the Profit and Loss Account as an extra ordinary income. In the revised return of income, it was claimed that amount waived by the banks consisted of interest component of Rs.20.79 crores and principal amount of Rs.4.40 crores. The argument is that throughout the waived principal amount did not result in income. The Assessing Officer did not accept this argument and therefore the assessee carried the matter before the First Appellate Authority. The argument is that throughout the waived principal amount did not result in income. The Assessing Officer did not accept this argument and therefore the assessee carried the matter before the First Appellate Authority. He directed the Assessing Officer to verify the principal/interest portions of loan and if the principal portion of loan had not been claimed as deduction, then the same should be excluded from the taxable income. 11. It is this order of the First Appellate Authority which was challenged by the revenue in appeal before the tribunal. The argument of both sides have been referred in details in paragraph 6 of the tribunal's order and it has held that on perusal of the loan agreement insofar as loan from ICICI Bank is concerned (subject matter and part of this appeal) that was for purchasing machinery and availed by the assessee. As far as loan from ADCB is concerned, it was conceded that the same was against hypothecation of stock and not a term loan. We are not concerned with that part of the order of the tribunal, however, it is material to note that the tribunal disallowed the claim made by the assessee and held that as far as ADCB is concerned, the waiver of the principal amount would have to be construed as taxable income. However, as far as ICICI bank is concerned, it waived the principal amount of Rs. 3.06 crores that was not for carrying on any business activity but to acquire the capital assets. This Court has consistently taken a view that the loan amount written off would not come within the purview of section 28(iv) of the Income Tax Act. The view taken by this Court in the case of Mahindra & Mahindra Ltd. v. CIT [2003] 261 ITR 501/128 Taxman 394 and Solid Containers Ltd. v. Dy. CIT [2009] 308 ITR 417/178 Taxman 192 (Bom.) would enable the tribunal and equally us to conclude that the loan written off would not be taxable under Section 28(iv) of the Act. That issue specifically came up for consideration in the matter of Mahindra and Mahindra and it was held that the said provision would apply only when a benefit or perquisite is received in kind and has no application where benefit is received in cash or money. That issue specifically came up for consideration in the matter of Mahindra and Mahindra and it was held that the said provision would apply only when a benefit or perquisite is received in kind and has no application where benefit is received in cash or money. Following this decision in the case of CIT v. Xylon Holdings (P.) Ltd. [2012] 211 Taxman 108/26 taxmann.com 333 (Bom.) this Court held that the waiver would not come within the purview of Section 28(iv) of the Income Tax Act. Having perused this decision and in the peculiar facts and circumstances of the present case we are of the view that the tribunal has rightly upheld the order of the Commissioner. It has concluded that the factual and legal position enables it to hold that the direction of the First Appellate Authority cannot be said to be perverse. The view taken by him as termed by the tribunal is rational and judicious. More so, when the assessee company is a BIFR unit and it is in the process of revival, therefore, the banks waived loan as well as interest component due from the assessee. Equally, the loan sanctioned by ADCB and subsequently waived off has also been offered to tax. It is only in the ICICI bank's case that the tribunal took the above view and which we do not find as perverse or vitiated by a error of law apparent on the face of record. As a result of the above discussion, the appeal fails and is dismissed. There will be no order as to costs.