Allahabad H.C : Whether, on the facts and in the circumstances of the case, the assessee was allowed the deduction within the meaning of s. 41(1) of the IT Act, 1961, in earlier years in respect of sales-tax payable by it to the Government ?

Section Art. 226, 41(1)

Asst. Year 1980-81

Counsel Appeared

Sudhir Chandra, for the Assessee : None, for the Revenue

OM PRAKASH, J.:

The petitioner, a limited company, had collected sales-tax amounting to Rs. 43,78,875 from its customers and had deposited the same under protest with the ST Department in earlier years. The said sum was subsequently refunded by the ST Department in view of the Supreme Court judgment dt. 12th Dec., 1978, and was brought to tax under s. 41(1) of the IT Act, 1961, for the asst. yr. 1980-81. The petitioner appealed to the CIT(A), but failed. Then the dispute was carried to the Tribunal. There was difference of opinion between the Accountant Member and the Judicial Member on the point of taxability of the aforesaid amount. The Accountant Member took the view that the assessee in the assessment year under appeal had obtained a refund of 43,78,875 in respect of such a trading liability and that the receipt was because of the remission or cessation of the liability to sales-tax, therefore, the provisions of s. 41(1) of the Act are clearly applicable to the case.

The Judicial Member took a dissenting view, since, according to him, the petitioner was not allowed any deduction in respect of sales-tax refund for the earlier asst. yrs. 1970-71 to 1974-75 and hence s. 41(1) had no application to the petitioner’s case. Thereafter, the Bench of the Tribunal referred the following question for the opinion of the Third Member :

“Whether, on the facts and in the circumstances of the case, the assessee was allowed the deduction within the meaning of s. 41(1) of the IT Act, 1961, in earlier years in respect of sales-tax payable by it to the Government ?”

The Third Member, to whom the aforesaid question was referred for decision, approved the view of the Accountant Member that the assessee was indeed allowed deductions within the meaning of s. 41(1) Act, 1961, in the earlier years in respect of sales-tax. The Bench of the Tribunal, therefore, upheld the taxability of the amount refunded to the petitioner as per the majority view.

On these facts, we are of the view that the taxability of the amount of Rs. 43,78,875 having been decided by the Tribunal, the petitioner has a statutory remedy by way of reference under s. 256 of the Act of 1961, and we do not see any good ground to exercise our extraordinary jurisdiction under Art. 226 of the Constitution in the matter.

Sri Sudhir Chandra, learned counsel for the petitioner, however, urged that the petitioner had raised two more issues before the Tribunal to oppose the taxability of the sum of Rs. 43,78,875 but they were not referred to by the Judicial Member in his order and thus there wasno decision of the Tribunal on those two issues. That being so, Sri Sudhir Chandra further urged that the remedy of reference under s. 256 could not be of any avail to the petitioner in so far as those two issues are concerned and the writ petition is the only remedy. Elaborating the issues, Sri Sudhir Chandra argued that on behalf of the petitioner it was contended before the Tribunal that after refund of the sales-tax amount, the amount had been kept in a separate account and that had become payable to the customers,from whom the amount was realised and the petitioner held that amount only as trustee. As the petitioner’s liability had arisen in favour of the customers, a contention was raised before the Tribunal that the amount was not taxable under s. 41(1) of the Act. Also, according to Sri Sudhir Chandra, it was contended before the Tribunal that the amount was not taxable in the asst. yr. 1980-81. The submission of Sri Sudhir Chandra is that both these issues were not touched upon by the Judicial Member in his order and thus there was no order of the Tribunal thereon and there being no order of the Tribunal on these two important issues, no reference would lie on these issues under s. 256.

We do not see any force in the submission of Sri Sudhir Chandra. Before the Tribunal, the broad question was whether the receipt of Rs. 43,78,875 was taxable. The petitioner might have given several reasons in support of its case that the receipt was not taxable. Assuming that some of the reasons advanced on behalf of the petitioner against the taxability of the disputed receipt were not considered by the Tribunal, the petitioner is not justified in contending that there was no remedy of reference under s. 256. The question before the Tribunal was whether the sum of Rs. 43,87,875, having been refunded to the petitioner, was taxable for the asst. yr. 1980-81 and that question having been decided by the Tribunal, we are of the view that the taxability of that amount could be impugned by the petitioner under reference, provided a question of law arose from the Tribunal’s findings.

For the above reasons, we hold that no interference is needed in the matter under Art. 226 of the Constitution, as a statutory remedy by way of reference under s. 256 is available to the petitioner.

With the above observation, the writ petition is finally disposed of.

[Citation : 176 ITR 176]