Taxc/51/2011 Of Asst.commissioner Of Income Tax,Bhilai v. Rs Betspondent Shakti Liquors, Santrabadi, Station Road, Durg, Chhattisgarh 'Tf,?.^-'-'-"" ¥-'T';'.'...^O •^,^^7

'i^, IN THE HIGH COURT OF JUDICATURE ATBILASPUR. CHHATTISGARH llTAX CASE N0.S \/^Olb VQLppellantAssistant Commissioner of IncomeTax-1, Bhilai,Dist. Durg, ChhattisgarhVersusrsBetSpondent Shakti Liquors,Santrabadi,StationRoad,Durg,Chhattisgarh'tf,?.^-'-'-""¥-'t';'.'...^o•^,^^7 INCOME TAX APPEAL UNDER SECTION 260-A OF THE INCOME TAX, 1961 HIGH COURT OF CHHATTISGARH AT BILASPUR CORAM:HON'BLE SHRI YATINDRA SINGH, C.J.HON'BLE SHRI PRASHANT KUMAR MISHRA, J. TaxCaseNo.51 of 2011APPELLANT:AssistantCommissionerofIncomeTax-1, Bhilai.VERSUSRESPONDENT:M/s. Shakti Liquors.INCOME TAX APPEAL UNDER SECTION 260-A OF THE INCOME TAX ACT.1961 Appearance: Shri Anand Dadariya, Advocate for the Appellant. JUDGEMENT(21stMarch,2014) 1. This is an appeal under section 260-A of the Income Tax Act, 1961 (theAct) by the tncome Tax Department (the Department) against the orderdated 19.01.2010 passed by the Income Tax Appellate Tribunal, BilaspurBench, Bilaspur (the Tribunal) in respect of M/s. Shakti Liquors (theAssessee) for the Assessment Year (the AY) 2001-2002. THE FACTS 2. The Assessee wa^ engaged in liquor business and had filed its return on31.01.2001 showing a loss of ^72,82,084/-. 3. An assessment under section 143(3) of the Act was done on 25.03.2004by the Assessing Officer (the AO) reducing the loss to ^16,60,1557- only. 4. The Commissioner of Income Tax (the CIT) revised the order of the AOon 28.03.2006 under section 263 of the Act and sent back the case for re-decision. 5. The AO, by his order dated 28.12.2006, disallowed the deduction of^1,99,17,1097-, the amount of licence fee deducted by the Assessee andassessed the total income at ^1,42,49,860/-. '•-^^.^. ^J "-^.^y ^in. 6. Aggrieved by the aforesaid order, the Assessee filed an appeal before theCommissioner Income Tax (Appeals), Raipur {the CIT(A)}. It was allowedon 10.10.2007. 7. Aggrieved by the aforesaid order, the Department filed an appeal beforethe Tribunal which was dismissed on 19.01.2010. Hence the present appealby the Department. THE DECISION 8. We have heard counsel for the Department. No one has put upappearance on behalf of the Assesse and we have requested Shri NeelabhDubey, Advocate to appear as a friend of the court on behalf of theAssessee. 9. This appeal was admitted on 24.11.2011 on the following question of law:Whether the ITAT, Bilaspur was justified inholding that the license fees payable to theState Excise department is not disallowable u/s.43B of the Income Tax Act, 1961 in a situationwere the license fees is not actually paid? / 10. The AO held that the case was covered by section 43B of the Act. Asthere was no evidence of payment during the relevant previous year, thededuction of licence fee could not be claimed, and as such, it wasdisallowed. 11. The CIT-A did not record any finding whether the entire licence fee waspaid or not paid, yet it allowed the deduction on the ground that the casewas not covered by section 43B of the Act. The Tribunal has affirmed thefindings ofthe CIT-A. 12. There is no finding by the CIT-A or the Tribunal that the entire amount oflicence fee was paid at any time. Whether the case is coveredunder section43B of the Act or not; any expenditure cannot be allowed unless it wasdone. 13. In view of above, the orders passed by the CIT-A as well as the Tribunalare illegal and are set aside. The case is sent back to the CIT-A to pass afresh order. i';l];'^&^ Subbu 14. In view of the fact that we are remanding the case back to the CIT-A forfresh decision; the entire case is reopened. The appeal may be decided inaccordance with law without being influenced by any observation or findingmade in this judgement or in the earlier[order]passed[by][ the][ CIT-A][ dated]10.10.2007 orthe orderofthe Tribunal dated 19.01.2010. 15. The CIT-A while deciding the appeal will also record its findings on thefollowing points: '1.Whether thelicence feepaidby theAssessee is covered by section 43B of the Actor not; 2. Whether the licence fee has been actually paid or not.' 13. In view of above, the orders passed by the CIT-A as well as the Tribunalare illegal and are set aside. The case is sent back to the CIT-A to pass afresh order. i';l];'^&^ Subbu 14. In view of the fact that we are remanding the case back to the CIT-A forfresh decision; the entire case is reopened. The appeal may be decided inaccordance with law without being influenced by any observation or findingmade in this judgement or in the earlier[order]passed[by][ the][ CIT-A][ dated]10.10.2007 orthe orderofthe Tribunal dated 19.01.2010. 15. The CIT-A while deciding the appeal will also record its findings on thefollowing points: '1.Whether thelicence feepaidby theAssessee is covered by section 43B of the Actor not; 2. Whether the licence fee has been actually paid or not.' 16. With the aforesaid observations, this appeal is allowed and the matter isremandedto theCIT-A, Raipur. Sd//-Prashant Kumar MishraJudge Sd/-Chief Justice