1. This appeal of the assessee is directed against the order of the CIT(A) dt. 10th April, 2003 which pertains to asst. yr. 1997-98.
2. The assessee filed its return of income for asst. yr. 1997-98 on 29th Oct., 1997. The assessment was completed on 30th March, 2000 on a total income of Rs. 11,99,136. The appeal was decided by the learned CIT(A) on 8th Sept., 2000 and after that total income remained at Rs. 9,92,457.
3. Thereafter, the assessee filed an application under Section 154 of the Act stating therein that it had claimed expenditure of Rs. 3,40,498 being sales-tax pertaining to asst. yr. 1995-96, which was actually paid during the year relevant to assessment year under consideration. A copy of challan was filed along with the return of income. This amount remained unconsidered during the assessment proceedings. It was prayed that it being a mistake apparent on record should be rectified under Section 154 of the Act.
4. The AO found after hearing the assessee that no such claim was made by the assessee therefore he rejected the application of the assessee.
The other contention of the assessee that the learned CIT(A) while dealing with the assessment order pertaining to asst. yr. 1995-96, held that it is to be allowed in asst. yr. 1997-98, was also not found favourable and hence the application was not allowed.
5. The assessee preferred an appeal against this order dt. 29th April, 2002, before the learned CIT(A), who also treated this claim of the assessee in the same manner as the learned AO did.
6. We have heard the rival submissions and perused the evidence on record.
7. The assessee has taken many grounds of appeal but the issue raised is only one which is in respect of the rectification of the assessment order insofar as the payment of sales-tax amounting to Rs. 3,40,498 is concerned. In the order of the CIT(A) pertaining to asst. yr. 1995-96 while dealing with claim of deduction of this amount the following observation was made: It is, however, allowable in the previous year relevant to the year of payment.
8. The learned CIT(A) while dealing with the present appeal has observed that the challan for payment has not been submitted. He further observed that a claim, which was not claimed, cannot be allowed under Section 154 of the Act. But before us, it is established that the assessee did make the payment of sales-tax in question in this year.
The disallowance of Rs. 3,40,491 was made in asst. yr. 1995-96, being the amount of unpaid sales-tax being hit by Section 43B. It is true that no such claim was made in this year. But, we do not agree that if the claim was eligible and could not be made, as it was made in another year, this claim cannot be allowed in the year in which it becomes allowable as per the provisions of Section 43B.9. The deduction under Section 43B is allowable on actual payment. We may refer to the decision of Berger Paints India Ltd. v. CIT (2004) 187 CTR (SC) 193 : (2004) 226 ITR 99 (SC), amongst others. Therefore, we allow the appeal of the assessee by allowing the relief as claimed by it. We direct the AO to rectify his order accordingly to that extent.