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TMI Blog2001 (11) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... t General Industries Ltd. supplies goods to the assessee and the letter is expected to sell the same at fixed price. The assessee is entitled to commission on the sales effected by them. The assessee is also entitled to collect sales-tax, octroi, etc. from the customers. During the year under appeal, the assessee sold goods to the tune of Rs. 4,49,13,535 out of which a sum of Rs. 3,79,22,595 was credited to the principal leaving a surplus of Rs. 69,90,940 with the assessee. The assessee had not given the details of the deduction of Rs. 69,90,940. On enquiry, the Assessing Officer found the details of the deductions made by the assessee from the account of the principal as under:-- Rs. Sales Return 11,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment may be finalised after verifying all the other facts as per law and after making addition of this amount of Rs. 3,40,000." The AO, accordingly, made an assessment on 30-3-1990 at an income of Rs. 3,50,570 which included a sum of Rs. 3,40,000 as amount transfered from fan sales account to the current outstanding account surrendered by the assessee. The AO also made an addition under section 43B of Rs. 3,32,130 on account of unpaid sales-tax but allowed the deduction under the same section for the sales-tax paid for assessment year 1985-86 of Rs. 3,74,801. 3. The assessee appealed to the CIT(A) challenging the reopening of assessment. However, the CIT(A) rejected the ground of appeal on the ground that the AO had reason to beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Ahmedabad Bench of the Tribunal in the assessee's own case Orient Trading Co. v. ITO [1993] 44 ITD 300 in support of the contention that excess sales-tax collected by a commission agent is not liable to tax in the hands of the Commission Agent as the tax is collected on behalf of the principal. Reliance was also placed on the decision of the Hon'ble Supreme Court in the case of CIT v. D. Shankaraiah [2001] 247 ITR 798 where their Lordships have held that the refund received by the commission agent from the sales-tax department was not taxable in the hands of the assessee. It was, accordingly, contended that the appeal of the Revenue may be dismissed. 6. I have given my careful consideration to the rival contentions. It is not di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Rs. 3,40,000 as a trading receipt surrendered by the assessee. The CIT(A) was, therefore, not justified to decide the issue in favour of the assessee without there being any explanation from the assessee as to why the amount surrendered in the assessment proceedings was being contested in appeal before the CIT(A). The ld. CIT(A) has been swayed by the decision of the Tribunal in assessee's own case relating to sales-tax. However, the principal applicable to the sales-tax which was recovered on behalf of the principal is not applicable to the recovery of Rs. 3,40,000 as the same was not collected on behalf of the principal. From the details of the deduction from gross sales of fans on consignment placed at page 2 of the paper book, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion rendered in Chowringhee Sales Bureau (P.) Ltd v. CIT [1973] 87 ITR 542 (SC) would apply and the High Court is wrong in following its own earlier decision in C.R. No. 11 of 1981. As no other ground has been raised, we are not inclined to permit the appellant to raise such grounds which require further investigation of law and facts. It is also contended that when sales tax was collected, the assessee claimed benefit of revenue expenditure thereof and, therefore, when the assessee collected the refund it ought to show the same as its income and paid the tax therefor. No record is available to prove this. In the circumstances, we are unable to differ from the view taken by the High Court. The appeals fail and are dismissed." A careful r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT(A) that the said amount was refundable to the dealers was not established. Their Lordships of the Hon'ble Supreme Court in the case of CIT v. G.R. Karthikeyan [1993] 201 ITR 866, held that the definition of "income" in section 2(24) was inclusive, and that the purpose of the definition was not to limit the meaning of income but to widen its net, and the several clauses therein were not exhaustive of the. meaning of income; even if a receipt did not fall within the ambit of any of those clauses, it might still be income if it partook of the nature of income. In this case, the assessee was carrying on business. The surplus of Rs. 3,40,000 was recovered by the assessee in the course of its business. There is no corresponding liability es ..... X X X X Extracts X X X X X X X X Extracts X X X X
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