9911796707
TMI Blog1980 (8) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... are concerned with the assessment year 1971-72, the previous year being the calendar year 1970. The assessee is a private limited company and carries on business of recovering caustic soda from mercerising waste caustic liquor and resupplying the same to mills. The assessee was served with a notice that excise duty was recoverable in respect of dilute waste lye sent from one mill to another factory for concentration or recovery which was done by the assessee on behalf of others. On the one hand, the assessee-company paid the amount and on the other, it recovered Rs. 15,964 from its constituents. At the same time, the assessee contended before the excise department that duty was not leviable on the facts of the particular case. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee's business receipts and was on par with sales tax and it was contended that excise duty was held to be part of taxable receipts in a number of cases. The Tribunal held that before the claim could be considered under s. 41(1) of the I.T. Act, 1961, some investigation would be necessary. Firstly, it should be seen how the assessee recovered this amount from the constituents, what was the treatment, whether the excise payment reduced the assessee's income. Secondly, it should be seen whether the refund was subject to the claim of the constituents that they should get back the excise duty which the assessee had wrongly recovered from them. The ITO had not considered the provisions of s. 41(1) at all. As altogether a new case requirin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court observed: " We are clear in our mind that the Tribunal was right in holding that the question raised by the appellant could not be decided without taking further evidence. The Tribunal refused permission to the appellant to lead further evidence and it had full jurisdiction to do so. We see no reason to interfere with the exercise of the Tribunal's discretion in the matter." Thus, it is clear that when the Tribunal declined to allow the revenue to go into the question arising under s. 41(1) of the Act on the ground that extensive investigation into facts would be necessary, the Tribunal was acting in the exercise of its jurisdiction. It is not for us to go into this question at this stage because the revenue never approached the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in the exercise of its discretion refused to go into this question because various facts would have been required to be investigated into as pointed out by the Tribunal in order to examine the question under s. 41 (1) and it was for that reason that the Tribunal declined to go into the question of s. 41(1). In our opinion, the stand taken by the Tribunal was in exercise of jurisdiction and it is not necessary for us to go into the question regarding the chargeability to tax, so far as this amount of Rs. 15,964 was concerned, under s. 41(1) of the Act. Relying on the decision of the Bombay High Court in In re Union Bank of Bijapur and Sholapur Ltd. [1942] 10 ITR 21 and the decision of the Mysore High Court in CIT v. Lakshmamma [1964] 52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of chargeability to tax under s. 41(1) which was sought to be raised before the Tribunal, and for the purpose of this conclusion of ours we have proceeded on the footing that this aspect of the case does arise out of the order of the Tribunal. So far as the question of s. 28(iv) of the Act is concerned, s. 28(iv) provides that that income falling under cl. (iv) of s. 28 shall be chargeable to income-tax under the head " Profits and gains of business or profession Clause (iv) provides: " the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession." It is obvious that if what is received either by way of benefit or perquisite is money, there is no question of c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
