9911796707
TMI Blog1984 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... ne through a copy of the said order and we concur with the reasoning and decision reached therein. Following the same respectfully, we decide this appeal in favour of the revenue. We would only like to add that deposit made under the Central Sales Tax Act, 1956 is an asset, not only under the law but also as per the principles of accountancy. An asset is never a liability as per the concepts either in law or in accountancy. Hence, any attempt in treating an asset as a liability is only a mistake apparent on record. Controversy sought to be treated or even if treated should be disregarded to thwart such attempts galore. 3. In the result, the appeal is allowed. Per Shri U. T. Shah, Judicial Member -- I have carefully gone through the order of my learned brother as well as the order of the Tribunal (of which my learned brother was a party), in the case of Shri Ambica Mills Ltd. and I am not in a position to persuade myself to agree with the view taken by my learned brother. In my opinion, the appeal filed by the revenue deserves to be dismissed for the reasons stated in the subsequent paragraphs. 2. The facts in brief are : in the assessment originally framed under section 6(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench of the Tribunal in two cases and the observation made by the Tribunal (Delhi Bench) in the case of Surtax Officer v. Daulat Ram Dharambir Auto (P.) Ltd. [1982] 1 SOT 565. 6. In the case of Apara Textile Traders Ltd. v. Surtax Officer [1983] 2 SOT 603 (Ahd.), the Special Bench of the Tribunal has observed as under : "The appeal came up before a Division Bench of the Tribunal. The orders passed by different Benches of the Tribunal were produced by the parties to show that different Benches had taken conflicting views on the issue. Reference was made to the President for constituting a Special Bench. The proposal was accepted and hence this appeal before the Special Bench." 7. In Travancore Chemical Mfg. Co. Ltd. v. ITO [1983] 6 ITD 788 (Coch.), the Special Bench of the Tribunal has observed as under : "5. Aggrieved by these orders, the assessee appealed to the Tribunal. During the course of hearing of these appeals, the assessee contended that the proposed enhancement was not correct, that the payment made was in lieu of surcharge and, therefore, was equivalent to surcharge. The withdrawal of the deduction allowed for surcharge paid is thus, wrong. There is also a deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Surtax Officer could not have taken action under section 13, with a view to enhance the chargeable profits of the assessee by Rs. 1,15,000. I would, therefore, uphold the order of the Commissioner (Appeals). 9. In the result, the appeal is dismissed. ORDER UNDER SECTION 255(4) OF THE INCOME-TAX ACT, 1961 -- Difference of opinion has arisen amongst the members, who constituted the Bench. The following point of difference is referred to the Hon'ble President of the Tribunal under section 255(4) of the Act : "Whether, on the facts and in the circumstances of the case, the Surtax Officer could have initiated the proceedings under section 13 of the Companies (Profits) Surtax Act, 1964 ?" THIRD MEMBER ORDER Per Dr. V. Balasubramanian, Vice President -- In the original assessment to surtax made in this case in computing the chargeable profits, the ITO deducted a sum of Rs. 1,15,000, being relief on account of the deposit of a like amount under the Companies Deposit (Surcharge on Income-tax) Scheme. Subsequently, the ITO rectified the assessment under section 13 by increasing the chargeable profit by Rs. 1,15,000. On appeal, the Commissioner (Appeals) cancelled the ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Delhi and the Cochin decisions, has explained in detail the reasons for the change in view in the later case. Travancore Chemical Mfg. Co. Ltd.'s case was decided on 16-8-1982. Subsequently, there is a Special Bench decision of the Ahmedabad Bench in Apara Textile Traders Ltd.'s case, which is also in favour of the department. Reference is made to the specific observations in this decision at paragraphs 9 and 10, which would justify the ITO's order in the present case. According to the learned counsel, there was no dispute about the interpretation of provisions which could render an order under section 13 illegal. 3. After hearing the learned counsel for the assessee, who has stressed the point made in the learned Judicial Member's order and also pointed out that there was clearly a debatable question which required the constitution of no less than two Special Benches of the Tribunal, it would be, therefore, unrealistic to regard the position of law as settled, as claimed by the learned counsel for the department. 4. On a consideration of the facts, even without any reliance on orders and the course of the Tribunal's orders referred to before us, it is possible to see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns attached that if subsequently the relief given in tax is again brought to tax, it is simple arithmetic to show that money is not rolled in the hands of the assessee as the Finance Minister's speech was explained as indicating. What the ITO does in the present case is to take back by one hand what he has given by the other not by an expressed provision but by reference to analogy or interpretation. What I want to point out is that the provisions are not as unambiguous and clear as made out by the department. The Special Bench of the Tribunal does not seem to have, having referred to the Finance Minister's speech, considered the implications thereof. If the question were to come on merits for consideration before another Bench, I am not sure that the same interpretation, as advanced by the learned counsel for the department, will be accepted. Also reference to assets and liabilities position to my mind also does not seem to be of any relevance insofar as what we are concerned with is the 'benefit' the assessee was given under rule 1 of the First Schedule. Even the reference to surtax presence or absence of that word in rule 1 is of no consequence. 6. I, therefore, agree with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
