ORDER
O. ANAND RAM, A.M. :
This appeal is directed against the order of CIT(A), Agra dt. 30th Nov., 1988. Shree Gopal Motors (P) Ltd., was assessed for the asst. yr. 1986-87 by an assessment order under S. 143(3) dt. 30th March, 1988 determining the total income at Rs. 1,56,530. The additions made in the assessment order were disputed before the CIT(A), who allowed the appeal of the assessed. The present appeal is by the Revenue.
2. The first issue in this appeal relates to the disallowance of a sum of Rs. 28,990 made under S. 43B. The addition was made by the Assessing Officer on the ground that the said amount was paid beyond the previous year. On appeal, the learned CIT(A) noted that the assessed had deposited Rs. 28,900 as sales-tax vide cheque No. 858363 on 30th April, 1986, i.e., within the time allowed by the ST Act. As the amount was not payable before 31st March, 1986, under the provisions of r. 41 of the ST Act, the CIT(A) held that the addition was not justified and deleted it. Before the Tribunal, the Revenue contended that the amount of Rs. 28,990 represents sales-tax collected by the assessed, but not paid before the close of the year and, thereforee, the addition is justified. This issue was already considered in the case of Jamshedpur Motor Accessories Stores vs . Union of India : [1991]189ITR70(Patna) and by the Calcutta High Court in the case of CIT vs . Shri Jagan Nath Steel Corporation : [1991]191ITR676(Cal) . According to the said decisions, the amendments made to S. 43B by the Finance Acts of 1987 and 1989 are clarificatory because the original S. 43B, as it stood on 1st April, 1984 could not be literally applied to a case where the last date of the last quarter under the sales-tax statutes coincides with the last date of the previous year. As the provision was harsh and unworkable, amendments were inserted in S. 43B. The provisos and Explanationn added to S. 43B supplied an omission and, thereforee, cannot be said to be prospective in operation. If an assessed has paid the sales-tax etc., within 30 days from the end of the accounting year that amount for that particular quarter was not actually payable within the accounting year under the relevant law. Respectfully following the aforesaid decisions, we uphold the decision of the CIT(A) and dismiss this ground of appeal by the Revenue.
3. The second issue relates to disallowance of Rs. 31,000 out of traveling allowance of Rs. 44,888. According to the assessment order, traveling expenses were mostly supported by debit vouchers and the original bills were not produced and it was found that two bills were in the names of M/s. Craft Palace and Pleasure Tours (assesseds sister concerns) and no tour report by the alleged tourists has been produced. The ITO, thereforee, disallowed Rs. 21,000 stating that it was made for unverifiable and non-relating expenses, disallowed on estimate. The CIT(A) mentioned the Explanationn of the assessed that the appellant has taken up dealership of M/s. Hindustan Motors Ltd., Calcutta and it necessitated visits to the factory at Calcutta from time to time. The travel agents bought the railway tickets and other expenses were incurred through them and payments were made through cheques. Finally, the CIT(A) decided that the expenses have been incurred for business purposes as their genuineness was not challenged. In the appeal, the contention of the Revenue is that the CIT(A) did not consider the fact that most of the vouchers were self vouchers and they even did not disclose the purpose of the journeys. In his order, the CIT(A) clearly mentioned that the assessed took up the dealership of M/s. Hindustan Motors Ltd., Calcutta and the visits were to the factory at Calcutta from time to time. He also referred to payments to travel agents by crossed-cheques and the fact that genuineness of the payments had not been challenged. On the basis of the available material, we do not see any reason to interfere with the orders of the CIT(A) and dismiss this ground of appeal by the Revenue.
4. Thirdly, the Revenue contests the decision of the CIT(A) in deleting an addition of Rs. 64,151 made by the ITO. According to the assessment order, the addition was made under the head 'Taxi Quota Excise Refund Account'. The assessment order stated that Rs. 64,151 has been realized by the assessed-company from the customers and its nature has been stated to be security and as the amount has neither been paid to the Government nor refunded to the customers during the year, it was taken as a trading receipt. On appeal, the CIT(A) considered the Explanationn of the assessed that the bills were received from M/s. Hindustan Motors Ltd. and the amount of Rs. 54,151 was realised on account of security for payment of excise duty by the Hindustan Motors Ltd. The said company supplied to the assessed certain cars to be sold in taxi quota. The Govt. of India gave concession in excise duty in the cars to be sold to taxi owners. But that concession was subsequently granted to the company on furnishing proof that the cars were actually sold to the taxi owners. In the outset the manufacturer charged the entire excise duty and he debited it to the accounts of the dealers and on receiving proof for the sale of cars to taxi owners, Hindustan Motors put in their claim of refund of excise duty and when their claim was admitted they issued credit notes to the dealers. However, in order to safeguard its own interest, the assessed-company realized the difference of excise duty from the taxi owners and credited it to an account styled as Taxi Quota Excise Refund Account. During the relevant accounting year, it credited the sum of Rs. 64,151 to the said account after realizing them from ten taxi owners. As none of the taxi owners could get their claim verified within the previous year, that amount was taken to the balance sheet. In the subsequent year, after verification of the claim and admission of the claim, the amount was refunded to the taxi owners. A copy of the account relating to this was produced before the CIT(A) and the bills of various taxi owners were also produced before the CIT(A) to show that the amounts were realized and dispatched to the concerned person. After the registration of the cars as taxis, Hindustan Motors allowed refund to the parties, which was forwarded to the assessed, who, in turn, handed them over the taxi owners. The details of the refunds were also produced before the CIT(A). Holding that the appellant was only a conduit pipe as a dealer and he was neither concerned nor responsible for excise duty, the CIT(A) deleted the addition of Rs. 64,151.
5. Before the Tribunal, the contention of the Revenue is that the said amount of Rs. 64,151 is a trading receipt in respect of the excise duty realized from the taxi owners, but not paid back to the Excise Deptt./taxi owners. The learned Departmental Representative relied on the decision of the Supreme Court in the case of Sinclair Murray & Co. P. Ltd. vs . CIT : [1974]97ITR615(SC) , to argue that the amount collected by the appellant as excise duty constituted its trading receipt and should be included in its total income. According to him, on the day of collection by the assessed, it was excise duty and retains the character of excise duty till the amount of refund was determined by the Department of central excise. This was countered by the learned authorised representative, who stated that in the sale bills for cars to taxi owners, the full amount of central excise duty is not collected but the reduced rate of central excise is collected at the prescribed rate for taxis. However, the difference between the rate for taxis and other cars was collected as a security deposit. He emphasised the fact that the assessment order did not dispute the claim of the assessed that the amount was collected as a security deposit and the CIT(A) also scrutinized the relevant bills. He further argued that once the basic fact of collection of the security deposit was mentioned in the assessment order and was not disputed, there was no necessity to examine the sales bills of the assessed to find out how the amount was described in sales bills.
6. The learned Departmental Representative in his reply stated that though the assessment order was cryptic it got merged with the order of the CIT(A) and the Tribunal should ascertain the full facts. According to him, in the case of Jute Corporation of India Ltd. vs . CIT 0044/1991 : [1991]187ITR688(SC) , the Supreme Court observed that there appears to be no good reason to curtail the powers of the appellate authority.
7. We have heard the rival submissions. The assessment order did not dispute the fact that the assessed collected the amount as a security deposit. The CIT(A) examined the relevant bills and came to the conclusion that the assessed is not responsible for payment of central excise as it was the duty of the manufacturer and the assessed acted only as a conduit pipe both for collection and refund of central excise. He also examined the Taxi owners Refund Account. In the light of these facts, we have no reason to interfere with the order of the CIT(A). The decision of the Supreme Court, last referred to by the learned Departmental Representative, was in the context of the powers of the first appellate authority and does not relate to the powers of the Tribunal and is not applicable to the facts of the present appeal before us.
8. The appeal by the Revenue is, thereforee, dismissed.