2002 (2) TMI 28 - HC - Income Tax

Business Expenditure - Deduction Only On Actual Payment - Whether on the facts and in the circumstances of these cases the Appellate Tribunal erred in law in setting aside the matters to the Assessing Officer with directions that no disallowances were to be made under section 43B of the Income-tax Act 1961 of Rs. 6, 570 Rs. 5, 303 Rs. 24, 672 and Rs. 13, 459 if such payments had been made on or before the due date applicable for furnishing of return of income under section 139(1) of the Income-tax Act 1961? - we answer the question in the negative as that the Tribunal is right in law in setting aside the order of the Assessing Officer with direction to the Assessing Officer not to disallow the amount under section 43B of the Act i.e. in favour of the assessee and against the Revenue.

Summary

Issues:
Whether the Tribunal erred in law in setting aside disallowances under section 43B of the Income-tax Act.
Whether sales tax paid during the grace period attracts provisions of section 43B.
Whether the first proviso to section 43B is retrospective.
Whether the view taken by the Delhi High Court on the retrospective operation of the first proviso to section 43B is correct.

Analysis:
The case involved an application under section 256(1) of the Income-tax Act, 1961, where the Tribunal referred a question regarding disallowances under section 43B of the Act. The assessees, registered firms, had collected sales tax but failed to deposit it during the relevant assessment years. The Assessing Officer disallowed the deduction of sales tax paid after the accounting year, even during the grace period. However, the Commissioner of Income-tax (Appeals) allowed the appeal, stating that sales tax paid during the grace period does not fall under section 43B. This decision was upheld by the Tribunal.

The issue was settled by the Supreme Court in the case of Allied Motors (P.) Ltd. v. CIT [1997] 224 ITR 677, where it was clarified that the first proviso to section 43B is retrospective. Various High Courts had also supported this view, indicating that sales tax paid after the accounting year but within the grace period is deductible under section 43B. The Tribunal, following the Supreme Court's decision, found no fault in the order and ruled in favor of the assessee against the Revenue.

Therefore, the Tribunal's decision to set aside the Assessing Officer's order and direct not to disallow the amount under section 43B was deemed correct in law based on the retrospective nature of the first proviso to section 43B as established by the Supreme Court and supported by various High Court judgments. The judgment concluded by answering the referred question in the negative, affirming the Tribunal's decision and disposing of the reference accordingly.