9911796707
TMI Blog2003 (8) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an income of Rs. 14,930. The said return was processed under section 143(1)(a) of the Act on February 15, 1991. There was a search in the business premises of the assessee on April 28, 1988, by the Central Excise Department and gold ornaments weighing 1,379.500 gms. and one piece of melted gold weighing 114.850 gms. were seized. Based on these materials, the Assessing Officer had issued a notice under section 148 of the Act on January 8, 1992, and the assessee filed a return on March 30, 1992, pursuant thereto. In the said assessment proceedings, the assessee claimed deduction of a total sum of Rs. 1,95,000 (Rs. 1,50,000 towards redemption fine and Rs. 45,000 towards penalty) under section 37 of the Act. The. Assessing Officer rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne and Rs. 45,000 by way of penalty with reference to the relevant provisions of the Central Excise Act and the Rules. Standing counsel submits that it is not the nomenclature which is given to the payment that matters, but the essential nature of the payment with reference to the statutory provisions- Standing counsel, in support of the said contention, has relied on the decision of the Supreme Court in Swedeshi Cotton Mills Co. Ltd. v. CIT [1998] 233 ITR 199. Standing counsel further submitted that the question referred in this case is squarely covered by the decision of the Supreme Court in Haji Aziz and Abdul Shakoor Bros. v. CIT [1961] 41 ITR 350 in favour of the Revenue and against the assessee. Standing counsel further submits that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the person affected thereby is liable under the provisions of this Act or under any other law." We, find that neither the assessing authority nor the two appellate authorities had made any effort to ascertain the nature of the payment and the consequences provided therefor in the Act and the Rules. The question as to whether the redemption fine paid under the provisions of section 34 of the Act can be treated as one for infraction of law is also a relevant matter to be considered, that too with reference to the provisions of section 34A also. In fact the Supreme Court in Swedeshi Cotton Mills' case [1998] 233 ITR 199 has clearly observed that whenever any statutory impost paid by an assessee by way of damages or penalty or interest, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Department has got a case that the question of penalty was not the subject-matter of the appeals before the Tribunal and the Tribunal has erroneously assumed that the first appellate authority has granted relief in respect of fine, penalty and litigation expenses on an erroneous reading of the order. In other words, the Department's contention is that regarding penalty the first appellate authority has declined the relief and that has become final. We do not think it necessary to consider this question in this appeal for we have already remitted the very question with regard to the eligibility for deduction, of fine, penalty and litigation expenses to be considered by the Assessing Officer himself, particularly in view of the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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