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TMI Blog1987 (7) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of hearing the assessee has placed before us an additional ground of appeal, which reads as follows : "That following the order of ITAT for assessment year 1979-80 dated 27.3.1987 (para 46) on the facts and circumstances of the case and in law a sum of Rs. 7,34,433 representing excise duty liability deleted by the Collector, Central Excise in the year of appeal and offered by the appellant for tax should be excluded from the total income of the appellant." The facts which made this additional ground necessary are as follows : 3. The Assistant Collector of Central Excise, Ratlam had passed an order on 14.12.1978 which was within the previous year relevant to the assessment year 1979-80, raising a demand of Rs. 7,81,945 against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the ultimate liability of the assessee for excise duty. If the real liability was not known, one could go by the demand notice of the Assistant Collector of Customs. But when the dispute has been resolved finally and the amount of real liability of the assessee is known to the Income-tax Officer at the time of making the assessment, there is no point in not taking into account the real liability and going by an inflated figure. The ITO was, in our opinion, justified in disallowing the excise provision in this regard. It will, of course, be open to the assessee to raise the plea, as and when the appeal for assessment year 1980-81 comes up for hearing that the amount which has been offered for assessment in 1980-81 should be excluded from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional ground should be admitted. It was held by the Punjab and Haryana High Court in the case of Atlas Cycle Industries Ltd. v. CIT (1982) 133 ITR 231 that the power of the Tribunal in appeal to allow an additional plea and consequently for additional evidence being taken has been given to do substantial justice between the parties. It was further held that the Tribunal has to allow or disallow the additional piece as additional evidence after applying its judicial mind. In this case the question was about the allowance of an expenditure in one year or the other. In that case also the Appellate Assistant Commissioner while disallowing the claim in one year had made certain observations for its allowance in the other year. The High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the confirmation of levy of interest under section 216 of the Income-tax Act amounting to Rs. 1,57,064. The learned C. I. T. (Appeals) has considered this issue in paragraph 14.1 of his order. It had been pleaded before the C. I. T. (Appeals) that the estimates made by the assessee from time to time were bona fide estimates based on the materials available to the assessee and, therefore, interest under section 216 had wrongly been charged. The C. I. T. (Appeals) referred to the language of section 216 and according to him for the purpose of charging interest under section 216 it was not necessary to show that there was any intention to underestimate the income for the purpose of payment of advance tax. According to him, the term "under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified on the facts of the case. It was, therefore, contended that the C. I. T. (Appeals) wrongly understood the provisions of law. A reference was also made to the order of the Tribunal in the immediately preceding year where after considering the facts it was held that the Income-tax Officer must apply his mind regarding the levy of interest under section 216. The Tribunal has given a finding that where the estimates were prepared with due care and after ascertaining the probable income of the assessee at particular time, interest could not be levied. 15. Having considered the submissions, we find force in the contention of the assessee and we hold that the C. I. T. (Appeals) was not correct in interpreting the requirements of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of 90 days and beyond that such leave would lapse. Privilege leave was negotiable at the time of discontinuance of service. From 1976 the company further allowed its employees to encash accumulated privilege leave up to 30 days subject to a maximum of 50% of the accumulated leave at the time of proceeding on privilege leave. It was open to the management to deny the benefit of encashment of privilege leave for any reason. 21. In the year 1974-75 the assessee started the practice of making a provision for the leave salary. The assessee used to claim this provision as deduction. Whenever an employee took any privilege leave and leave salary became payable to him the payment was debited to the provisions account and not to the salary acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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