Commissioner of Income-ta vs Sachdev Dal Mills

A.R. Tiwari, J.—The applicant (Commissioner, Bhopal) has filed this application u/s 256(2) of the income tax Act, 1961 (''the Act'') seeking direction to the Tribunal to state the case and refer the undernoted question of law, after rejection of the application registered as RA No. 79 (Indore) of 1991 for the assessment year 1984-85 on 9-3-1991 arising out of the order dated 21 -2-1991 passed in IT Appeal No. 627 (Indore) of 1986 for our opinion:

Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the amended provisions of section 43B of the income tax Act, 1961, were applicable to assessment year 1984-85 when the said amendment was effective from 1-4-1988 ?

The aforesaid question was referred on the following grounds :

(i) That the Tribunal erred in law in giving retrospective effect to the amendments effective from 1-4-1988 in section 43B of the Act by exceeding its jurisdiction in reading more than what the Parliament has expressed provided.

(ii) That the taxing statute is passed after great scrutiny and the Tribunal erred in holding that the meaning of the words being dubious it required interpretation and under that tried to grant more retrospectivity to the amended provision that what is prescribed.

(iii) That as the question is not finally decided by the Supreme Court, a question of law did arise worth opinion of the Hon''ble Court.

Briefly stated, the facts of the case are that the Assessing Officer found that an amount of Rs. 11,251 was outstanding at the close of the accounting period. He, therefore, made addition of this amount in terms of section 43B. In appeal, the Commissioner (Appeals) deleted the addition. Ag grieved, the department filed the appeal before the Tribunal. Section 43B was amended by the Finance Act, 1987 to the effect that if the payment of statutory taxes was made before due date for filing the income tax return u/s 139(1) of the Act the claim should be allowed in view of the decision in the case of Jamshedpur Motor Accessories Stores v. Union of India [1991] 189 ITR 70 1 (Pat.). The Tribunal, thus, confirmed the order passed by the Commissioner (Appeals). The revenue, then, filed the application u/s 256(1). The application was rejected. The applicant, therefore, filed this application u/s 256(2).

We have heard Shri D.D. Vyas, the learned counsel for the applicant and Shri Nazir Singh, the learned counsel for the non-applicant.

The counsel for both sides submitted before us that the aforesaid question stands answered and concluded and similar question is answered by this Court against the applicant-department. This Court has already held that section 43B though amended with effect from 1-4-1988 is retrospective in operation.

The application u/s 256(2) has been rejected by us by common order passed in CIT v. Shree Tea Co. [1996] 86 Taxman 372 (Indore) and connected miscellaneous civil cases.

Nothing substantial is urged to persuade us to take a different view.

The point, therefore, stands concluded against the applicant. The application is, therefore, devoid of merit and gives rise to no referable question of law. In the result, we reject this application as meritless but without any orders as to costs. Counsel fee for each side is, however, fixed as Rs. 750 if certified.