Commissioner Of Income Tax v. Saurashtra Cement Ltd.....opponent(S

O/TAXAP/1445/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 1445 of 2005With TAX APPEAL NO. 1448 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERIand HONOURABLE MR.JUSTICE K.J.THAKER ==================================== 1Whether Reporters of Local Papers may be allowed to see the judgment?the judgment?2To be referred to the Reporter or not? 3Whether their Lordships wish to see the fair copy of the judgment?judgment?4Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder?to the interpretation of the constitution of India, 1950 or any order made thereunder?5Whether it is to be circulated to the civil judge? ==================================== COMMISSIONER OF INCOME TAX.....Appellant(s) Versus SAURASHTRA CEMENT LTD.....Opponent(s) ==================================== Appearance: MR PRANAV G DESAI, ADVOCATE for the Appellant(s) No. 1MRS SWATI SOPARKAR, ADVOCATE for the Opponent(s) No. 1 ==================================== CORAM: HONOURABLE MR.JUSTICE KS JHAVERIand HONOURABLE MR.JUSTICE K.J.THAKER ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1.By way of these appeals, the department has challenged the judgments and order of the Tribunal, whereby, the Tribunal has partly allowed the appeals preferred by the department. While admitting the matters, this Court has framed following substantial question of law: “Whether Appellate Tribunal was right in holding that the unpaid interest on unpaid sales tax was a permissible deduction u/s. 43B of the Income Tax Act, 1961?” 2.The question of law raised in these appeals, had come up for consideration before this Court in the case of the same assessee for the Assessment Year 1994-95 in Tax Appeal No. 1917 of 2005. This Court, while deciding the said identical case by judgment and order 13/11/2014, has held in paragraph Nos.3 and 4 as under: “3.The facts of the present case are that the assessee company is engaged in the business of manufacturing and sale of cement. The return of income showing loss at Rs. 14,25,77,366/- was filed on 30.11.1994, Thereafter, the income was revised twice and in its first revised return filed on 31.12.1994 the loss shown was at Rs.14,58,02,276/-. Assessee has filed 2[nd] revised return on29.3.1996 reducing the loss to Rs. 5,22,99,863/-. This return was revised on account of sales and payment made in last assessment year before due date of filing of return of income and the some payment made was subsequently claimed for deduction on paid basis in assessment year 1993-94. After processing the case u/s. 143(1)(a) and in response to notice u/s. 143(2)/14291) of the Act, the assessee has furnished the details. After considering the material on record, the assessment order came to be passed. Against the said order of assessment, the assessee has preferred an appeal before the CIT(A) which has been partly allowed, against which, the Revenue has preferred an appeal before ITAT which also came to be partly allowed. Against the said order of ITAT, the Revenue has preferred the present Tax Appeal. 4.Heard the learned advocates appearing for the parties and considered the submissions. The identical issue also came up for consideration before this Court in Tax Appeal No. 1093/2005 of the same assessee, where this Court has observed as under: “3. In the circumstances, it is not necessary to set out facts and respective contentions in detail. Today, by a 4.Heard the learned advocates appearing for the parties and considered the submissions. The identical issue also came up for consideration before this Court in Tax Appeal No. 1093/2005 of the same assessee, where this Court has observed as under: “3. In the circumstances, it is not necessary to set out facts and respective contentions in detail. Today, by a judgment of even date, the reference on this issue has been answered by this Court against the revenue and in favour of the assessee. Hence, for the self-same reasons, the question in the present tax appeal stands answered accordingly in favour of the assessee and the appeal stands disposed of with no order as to costs.” 3.There is no dispute amongst both the learned counsels that the aforesaid decision will apply in the facts of this case also, as the facts and the question of law raised, are identical and therefore, we are not giving elaborate reasons.aforesaid decision will apply in the facts of this case also, as the facts and the question of law raised, are identical and therefore, we are not giving elaborate reasons. 4.Accordingly, the question, “Whether Appellate Tribunal was right in holding that the unpaid interest on unpaid sales tax was a permissible deduction u/s. 43B of the Income Tax Act, 1961?” is answered in favour of the assessee and against the department. The appeals stand dismissed accordingly.in holding that the unpaid interest on unpaid sales tax was a permissible deduction u/s. 43B of the Income Tax Act, 1961?” is answered in favour of the assessee and against the department. The appeals stand dismissed accordingly. [ K. S. Jhaveri, J. ] hiren [ K. J. Thaker, J. ]