1966 (8) TMI 15 - HC - Income Tax

ITO disallowed the amount of sales tax liability claimed by the assessee on the ground that same was under dispute and assessee did not pay the amount - amount which was claimed by the assessee as a deduction on account of sales tax was not deductible as a business expense

Issues Involved:
1. Deductibility of sales tax as a business expense
2. Interpretation of Section 10(2)(xv) of the Indian Income-tax Act
3. Applicability of Section 10(2A) of the Indian Income-tax Act
4. Distinction between actual liability and contingent liability
5. Relevance of the method of accounting (mercantile system)
6. Impact of non-payment and dispute of sales tax on deductibility

Detailed Analysis:

1. Deductibility of Sales Tax as a Business Expense:
The primary issue was whether the amount of Rs. 1,49,776 claimed by the assessee as a deduction on account of sales tax was deductible as a business expense. The court examined the facts that the sales tax was determined to be payable on the sales account during the relevant accounting year, but the demand notice for the sales tax was served later, and the assessee had contested the liability.

2. Interpretation of Section 10(2)(xv) of the Indian Income-tax Act:
The court focused on Section 10(2)(xv) of the Indian Income-tax Act, which allows for deductions of any expenditure "laid out or expended wholly and exclusively for the purpose of such business." The court interpreted the words "laid out" and "expended" to mean tax already paid or arranged to be paid. Since the sales tax was neither paid nor arranged to be paid and was disputed, it did not meet the criteria for deduction under this section.

3. Applicability of Section 10(2A) of the Indian Income-tax Act:
The assessee argued that under Section 10(2A), if the ultimate liability for sales tax was decided in favor of the assessee, the benefit of remission or deduction would be adjusted in subsequent years. The court rejected this interpretation, stating that the words "allowance or deduction," "made," "liability incurred," "remission," and "cessation" indicate that the liability must be paid or incurred. Since the sales tax was disputed and unpaid, it could not be claimed as a deduction.

4. Distinction Between Actual Liability and Contingent Liability:
The court emphasized the distinction between actual liability and contingent liability. It referred to the Supreme Court's decision in Indian Molasses Co. v. Commissioner of Income-tax, which clarified that deductible expenditure must be an actual liability in praesenti and not a liability in futuro. The court concluded that the sales tax liability in this case was contingent and dependent on the outcome of legal disputes, and therefore, it was not deductible.

5. Relevance of the Method of Accounting (Mercantile System):
The assessee followed the mercantile system of accounting and argued that the liability for sales tax accrued when the sales were made. However, the court held that even under the mercantile system, a liability must be ascertained and not disputed to be deductible. The court noted that the assessee had not made any provision for the sales tax liability in its books, further weakening the claim for deduction.

6. Impact of Non-payment and Dispute of Sales Tax on Deductibility:
The court considered the fact that the sales tax was neither paid nor provided for in the accounts and was being contested by the assessee. It held that allowing a deduction for an unpaid and disputed tax would lead to an untenable situation where the assessee could claim a deduction without actually incurring the expenditure. The court cited various precedents to support its conclusion that an unpaid and disputed tax cannot be claimed as a deduction.

Conclusion:
The court answered the question in the negative, holding that the amount of Rs. 1,49,776 claimed by the assessee as a deduction on account of sales tax was not deductible as a business expense in the facts and circumstances of this case. The Commissioner was awarded the costs of the reference, certified for two counsel.

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