Judgment:
ORDER
By this application filed under section 256(2) of the Income Tax Act, the revenue prays that Tribunal be directed to refer the following question as set-out in para 6 of the application, for the opinion of this court :
'Whether on the facts and in the circumstances of the case, and in law, the Tribunal was justified in upholding the directions of the Commissioner (Appeals) to disallow only that much amount out of unpaid sales tax amounting to Rs. 2,17,457, which has not been paid within the stipulated time allowed under the Sales Tax Law?'
2. The case of the assessee is that assessee has not claimed the deduction of the sales tax payment, which has been, deposited after the period allowed under the Sales Tax Act, i.e., the amount of Rs. 2,12,457. During the course of assessment, he submitted the reply to the assessing officer, which has been referred at page 3 of the assessment order for ready reference, which reads as under :
'The provisions of section 43B are not applicable in our case. We have never claimed in the past several years as well as in the year under assessment, the deduction on account of payment sales tax. The assessee has to pay sales-tax on quarterly basis. The sales-tax for the first three quarters in the previous year relevant to the assessment year under assessment has been paid and no deduction has been claimed in this regard. The amount of sales-tax involved in the fourth quarter is Rs. 2,17,457.45, which we have paid in subsequent year.'
3. In spite of that reply, the assessing officer has disallowed the entire sales tax, which was deposited even before the period permissible under the Sales Tax Act, invoking the provisions of section 43B of the Income Tax Act.
4. In appeal before the Commissioner (Appeals), Commissioner (Appeals) has directed that sales-tax amount, which has not been paid even within the period permissible under the Sales Tax Act, only to that extent the disallowance can be made under section 43B of the Act.
5. The view taken by Commissioner (Appeals) has been upheld by the Tribunal in appeal. Even reference application filed under section 256(1) of the Act has been rejected. Learned counsel for the revenue, Mr. Mathur supports the view taken by the assessing officer.
6. Now the issue has been covered by the decision of the Apex Court in the case of Allied Motors (P) Ltd. v. CIT : [1997]224ITR677(SC) , wherein their Lordships have considered the Explanation to section 43B and held that Explanation has a retrospective effect and if the amount of sales-tax is deposited within the period permissible, though beyond 31st March, but before the period permissible under the Sales Tax Act, that amount should be allowed and if any amount of sales tax has not been deposited within that period also, that can be disallowed.
7. In view of these admitted facts, no case is made-out for direction to the Tribunal. The application filed under section 256(2) of the Act is rejected.