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TMI Blog2020 (3) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... mbai -Vs- Balkrishna Industries Ltd ., [ 2017 (11) TMI 1626 - SUPREME COURT] has decided that Section 41(1) of the Act does not apply in such circumstances . Following the said decision of the Hon'ble Supreme Court, a Coordinate Bench of this Court also dismissed a similar appeal filed by the Revenue in the case of Commissioner of Income Tax -Vs- M/s.Wheels India Limited [ 2019 (7) TMI 986 - MADRAS HIGH COURT] - Decided against revenue - Tax Case (Appeal) No.231 of 2011 - - - Dated:- 20-2-2020 - Dr. Justice Vineet Kothari And Mr. Justice R. Suresh Kumar For the Appellant : Mrs.V.Pushpa Senior Standing Counsel For the Respondent : Mr.R.Venkatnarayanan for M/s.Subbaraya Iyer Padmanabhan JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue and refused the same under Section 263 of the Act vide order dated 26.02.2010. 5. The Assessee took up the matter to the learned Tribunal, which however allowed the appeal of the Assessee with the following observations. We have considered the rival submissions and the material available on record. Both the parties have taken similar stand as was taken before the ld.CIT(A) in support of its case. The ld.AR has placed before us for our perusal a copy of the decision of the ITAT, Mumbai 'E' Special Bench in the cases of Sulzer India Ltd., -Vs- Jt.CIT and Others, order dated 10.11.2020. It is a lengthy order and supports the version taken by the assessee. To controvert the above decision, it was stated by the ld.DR t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shows that the assessee herein had collected the sales tax in the sum of ₹ 7,52,01,378/-. As per the Scheme floated by the Government of Maharashtra, for those assessees who set up their industries in the backward area, the sales tax liability was deferred for a period of 7 years and, thereafter, it can be paid over a period of 7 years under the Deferral Scheme of 1983 and over a period of 6 years under the Deferral Scheme of 1988. However, under the C.A. NO. 19587/ 2017 etc. (@ SLP (C) No. 30896/ 2015 etc.) Scheme of 1988, the Government of Maharashtra promoted premature or payment of deferral sales tax at Net Present Value (NPV). 8. In the meantime,section 38 of the Sales Tax Act was amended which provides that where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant portion of the discussion in this behalf reads as under: It is not possible to agree with Mr. Gupta. Because, premature payment of Sales Tax already collected but its remittance to the Government, as Mr. Gupta envisages, is not covered by this provision else the subsections and particularly section 43B(1) would have been worded accordingly. Therefore Section 43B has no application. Insofar as applicability of section 41(1)(a), there also the applicability is to be considered in the light of the liability. It is a loss, expenditure or trading liability. In this case, the scheme under which the Sales Tax liability was deferred enables the Assessee to remit the Sales Tax collected from the customers or consumers to the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nything in terms of section 41(1), but the Assessee is deemed to have received the sum of ₹ 4.14 crores, which is the difference between the original amount to be remitted with the payment made. Mr. Gupta terms this as deemed payment and by the State to the Assessee. We are unable to agree with him. The Tribunal has found that the first requirement of section 41(1) is that the allowance or deduction is made in respect of the loss, expenditure or a trading liability incurred by the Assessee and the other requirement is the Assessee has subsequently obtained any amount in respect of such loss and expenditure or obtained a benefit in respect of such trading liability by way of a remission or cessation thereof. As rightly noted by the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (@ SLP (C) No. 30896/ 2015 etc.) we are of the view that the aforesaid approach of the High Court is without any blemish, inasmuch as all the requirements of Section 41(1) of the Act could not be fulfilled in this case. 11.We, therefore, do not find any merit in these appeals which are accordingly, dismissed. 7. Following the said decision of the Hon'ble Supreme Court, a Coordinate Bench of this Court also dismissed a similar appeal filed by the Revenue in the case of Commissioner of Income Tax -Vs- M/s.Wheels India Limited (T.C.A.No.285 of 2018) on 11.06.2019. 8. In view of the aforesaid submissions made at Bar, the present appeal filed by the Revenue in the present case also deserves to be dismissed and the que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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