Cit (Central), Kanpur Vs. Commercial Auto Sales (P.) Ltd. - Court Judgment

Excerpt:
counsels: a.n. mahajan for the assessee. head note: income tax business disallowance under section 43b--applicability of provisionsales tax paid within statutory period in subsequent yearheld: amount of sales-tax which has been realised by the assessee from its customers, in one year and paid over to the sales-tax department within the statutory period in the subsequent year cannot be added in the income of the assessee invoking the provisions of section 43b. income tax act, 1961 s.43b in the allahabad high court r.k. agrawal & prakash krishna, jj. - 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. mohammadorderthe income tax appellate tribunal, allahabad, has referred the following question of law under section 256(1) of the income tax act, 1961 (hereinafter referred to as 'the act') for opinion to this court :'whether, on the facts and in the circumstances of the case, the tribunal was justified in holding that the provisions of section 43b of the income tax act, 1961 are not applicable ?'2. the present reference relates to the assessment year 1986-87.assessment year (sic) in question, respondent-assessee had realised sales tax from its customers, which was paid over to the sales tax department within the statutory period even though it fell in the subsequent year. the assessing authority added the amount by invoking the provisions of section 43b of the act. however, the tribunal has allowed the claim of the respondent-assessee.3. we have heard sri an mahajan, learned standing counsel for the revenue. nobody has appeared on behalf of the respondent-assessee.4. in view of the decision of the apex court in the case of allied motors (p.) ltd v. cit : [1997]224itr677(sc) , the amount of sales tax which has been realised in one year paid over to the sales tax department within the statutory period in the subsequent year cannot be added in the income of the assessee invoking the provisions of section 43b of the act. we, accordingly, answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the revenue. however, there shall be no order as to costs.

Judgment:
ORDER

The Income Tax Appellate Tribunal, Allahabad, has referred the following question of law under section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') for opinion to this court :

'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the provisions of section 43B of the Income Tax Act, 1961 are not applicable ?'

2. The present reference relates to the assessment year 1986-87.

Assessment year (sic) in question, respondent-assessee had realised sales tax from its customers, which was paid over to the Sales Tax department within the statutory period even though it fell in the subsequent year. The assessing authority added the amount by invoking the provisions of section 43B of the Act. However, the Tribunal has allowed the claim of the respondent-assessee.

3. We have heard Sri AN Mahajan, learned standing counsel for the revenue. Nobody has appeared on behalf of the respondent-assessee.

4. In view of the decision of the Apex Court in the case of Allied Motors (P.) Ltd v. CIT : [1997]224ITR677(SC) , the amount of sales tax which has been realised in one year paid over to the Sales Tax department within the statutory period in the subsequent year cannot be added in the income of the assessee invoking the provisions of section 43B of the Act. We, accordingly, answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the revenue. However, there shall be no order as to costs.