COMMISSIONER OF INCOME-TAX VS GUJARAT POLYCRETE (PVT.) LTD.
2001 P T D 1912
[246 I T R 463]
[Supreme Court of India]
Present: S. P. Bharucha and R. C. Lahoti, JJ
COMMISSIONER OF INCOME‑TAX
Versus
GUJARAT POLYCRETE (PVT.) LTD.
Civil Appeals Nos.6181 to 6184 of 1995, decided on 17/03/1999.
(Appeal by special leave from the judgment and order, dated July 1.8, 1994, of the Gujarat High Court in I.T.As. Nos.96 to 99 of 1994).
Income‑tax‑‑‑-
‑‑‑‑Business expenditure‑‑‑Deduction only on actual payment‑‑‑Sales tax‑‑ CBDT issuing circular stating that if a State Government had amended its Sales Tax Act to provide that sales tax deferred under an incentive scheme would be treated as actually paid it would satisfy S.43B‑‑‑Tribunal not ascertaining whether there was such an amendment in Gujarat ‑‑‑Tribunal whether justified in directing Assessing officer to allow claim of assessee in respect of unpaid sales tax if same were covered by specific scheme of Gujarat Government whereby deferred payment scheme was converted into an interest‑free loan‑‑‑Question of law‑‑‑Indian Income Tax Act, 1961, Ss.43B & 256‑‑‑Guiarat Sales Tax Act, 1969‑‑‑C.B.D.T. Circular No.496, dated 25‑9‑1987.
The Central Board of Direct Taxes Circular, dated September 25, 1987, would apply only if a State Government had amended its Sales Tax Act to provide that the sales tax that was deferred under an incentive scheme framed by it would be treated as actually paid, so as to meet the, requirements of section 43B of the Income Tax Act, 1961:
Held, that notice had not been taken of the Gujarat Sales Tax Act, 1969, to ascertain whether or not there was such an amendment. Hence, the question whether the Appellate Tribunal was right in law and on facts in directing the Assessing Officer to allow the claim of the assessee in respect of unpaid sales tax, if the same was covered by the specific scheme of the Gujarat Government whereby the deferred payment scheme was converted into interest‑free loan particularly when the provisions of section 43B are retrospective in operation was a question of law which had to be referred.
T.L.V. Iyer, Senior Advocate (Rajiv Nanda, Advocate for B. K.Prasad, Advocate with him) for Appellant.
JUDGMENT
The High Court declined to call for a reference, at the behest of the Revenue, of the following question:
"Whether the Appellate Tribunal is right in law and on facts in directing the Assessing Officer to allow, the claim of the assessee in respect of unpaid sales tax if the same was covered by the specific scheme of the Gujarat Government whereby the deferred payment scheme was converted into interest‑free loan particularly when the provisions of section 43B are retrospective in operation?"
Earlier, the Tribunal had declined such reference relying on its own judgment in Morvi Horological Industries v. ITO 36 ITD 115 (Ahd), reference wherefrom had been declined, and upon a Central Board of Direct Taxes, circular, dated September 25, 1987, reported in (1988) 169 ITR . (St.) 53.
We have been shown the said circular and it is clear that its provisions would apply only if a State Government had amended its Sales Tax Act to provide that the sales tax that was deferred under an incentive scheme framed by it would be treated as actually paid, so as to meet the requirements of section 43B of the Income Tax Act, 1961. Notice does no appear to have been taken of the Gujarat Sales Tax Act, 1969, to ascertain whether or not there was such an amendment. A question of law, therefore clearly arises, and it must be considered by the High Court.
The appeals are allowed. The order under appeal is set aside. The question quoted above shall be referred by the Tribunal to the High Court fog consideration, after drawing up a statement of case.
No order as to costs.
M.B.A./502/FCAppeal allowed.