Commissioner of Income-tax Vs. Emkay Glass Works - Court Judgment

Excerpt:
- indian penal code, 1860 [c.a. no. 45/1860]. section 302; [m.c. jain, r.c. deepak & k.k. misra, jj] murder plea as to accused being minor school register and transfer certificate not proved before court according to law held, it has to be ignored and question of age is to be determined on other evidence and circumstances surfacing on record. age determined on the basis of x-ray plates and report prepared by c.m.o., is the correct age of accused. accused was declared to be child on the date of commission of offence of murder. however, considering fact that now accused was around 41 years, he cannot be sent to approved school. accused was directed to pay fine of rs.25,000/- under section 302 i.p.c., amount of fine was directed to be paid as compensation to wife of deceased. mohammadr.k. agrawal, j.1. the income-tax appellate tribunal, new delhi, has referred the following two questions of law under section 256(2) of the income-tax act, 1961 (hereinafter referred to as 'the act') for opinion to this court:1. whether on the facts and in the circumstances of the case, the tribunal was correct in law in restoring back the matter back to the file of the commissioner of income-tax (appeals) to ascertain whether the deduction was allowed to the assessee in any year in the past for attracting the provisions of section 41(1) of the income-tax act, 1961?2. whether the hon'ble income-tax appellate tribunal while directing so, was correct in law, ignoring the facts that(i) taxability of refund was conceded by the assessee before the commissioner of income-tax (appeals); and(ii) the collection of excise duty of rs. 98,607 was undisputedly a trading receipt?2. the reference relates to the assessment year 1984-85.3. briefly stated, the facts giving rise to the present reference are as follows:4. the respondent-assessee had received a sum of rs. 98,077 as refund of central excise duty on january 24, 1983 in consequence of order of the collector, central excise, dated january 27, 1981. the assessing officer brought the said amount to tax under section 41(1) of the act, which order was upheld by the commissioner of income-tax (appeals). however, the tribunal has remanded the matter to the assessing officer to find out as to whether the amount has been allowed as a deduction in any of the years whether expressly or impliedly and if allowance or deduction has not been allowed in any year either expressly or impliedly for any reason whatsoever, the refund received by the assessee would not be assessable under section 41 of the act as the basic condition for attracting the provisions of section 41 of the act would be absent.5. we have heard sri shambhoo chopra, learned standing counsel for the revenue. nobody has appeared on behalf of the respondent-assessee.6. it is not in dispute that before all the authorities the respondent-assessee had been contending that no deduction in respect of the central excise duty has been claimed or allowed by the assessing officer and, therefore, there was no question of treating the amount of refund as income under section 41(1) of the act. for the applicability of section 41(1) of the act the prerequisite condition is that an allowance or deduction has been made in the assessment for any of the years in respect of an expenditure, loss or trading liability incurred by the assessee and subsequently during any previous year the assessee has received or obtained the said amount. as in the present case, we find that the tribunal has remitted the issue to the assessing authority to find out as to whether any allowance or deduction was either expressly or impliedly in any of the years the excise duty of rs. 98,077 has been granted or not, the order of the tribunal does not suffer from any infirmity.7. thus, the first question referred to us is answered in the affirmative, i.e., in favour of the assessee and against the revenue.8. so far as the second question is concerned, we find that even though the commissioner of income-tax (appeals) has recorded that the taxability of the refund has been conceded by the respondent, yet this very point was raised before the tribunal and the tribunal has adjudicated upon the said issue and, therefore, it will not make any difference on the order of remand passed by the tribunal.9. so far as the question of the collection of excise duty of rs. 98,607 as trading receipt is concerned, it is settled that the excise duty forms part of the turnover and is, therefore, a trading receipt. however, it will have no effect on the question as to whether under section 41(1) of the act the refund should be brought to tax or not.10. we accordingly, answer the first part of the second question in the negative, i.e., in favour of the assessee and against the revenue and the second part in the affirmative, i.e., in favour of the revenue and against the assessee. there shall be no order as to costs.