The Commissioner Of Income Tax – I, Pune v. Ghodganga Sahakari Sakhar Karkhana Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.862 OF 2011 The Commissioner of Income Tax – I, Pune..Appellant. Versus Ghodganga Sahakari Sakhar Karkhana Limited ..Respondent. Mr.Vimal Gupta, Senior Advocate i/by Ms.Padma Divakar for the appellant.None for the respondent. CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. M.S. Sanklecha, JJ. DATE : 5[th] February 2013 P.C. : 1.In this appeal by the Revenue for assessment year 2003-2004, following questions of law have been proposed for our consideration. “a)Whether on the facts and in the circumstances of the case and in law, the Tribunal did not err in deleting the addition made by the officer under Section 43B of the Income-tax Act, 1961, on the law, the Tribunal did not err in deleting the addition made by the officer under Section 43B of the Income-tax Act, 1961, on the ground of non-payment of excise duty on sale of sugar before the due date for filing of return under Section 139(1) of the Income Tax Act, 1961 ? b)Whether on the facts and in the circumstances of the case and in law, the Tribunal did not err in applying the decision of the Co-ordinate Bench of the Tribunal in the case of Loknete Balasaheb Desai SSK Limited in ITA No.911/PN/2005 to the present assessee law, the Tribunal did not err in applying the decision of the Co-ordinate Bench of the Tribunal in the case of Loknete Balasaheb Desai SSK Limited in ITA No.911/PN/2005 to the present assessee when the said decision of the Co-ordinate Bench had been given in a different context ?” 2.The Tribunal has allowed the respondent – assessee's appeal by following its own decision in the matter of Loknete Balasaheb Desai SSK Limited rendered on 30[th] April 2009. The Revenue carried the order of the Tribunal in the matter of Loknete Balasaheb Desai SSK Limited to this Court by filing Income Tax Appeal No.4297 of 2009. By an order dated 22[nd] June 2011, this Court upheld the order of the Tribunal and dismissed the appeal. 3.Mr.Gupta, learned Senior counsel for the Revenue sought to distinguish the decision of this Court in the matter of Loknete Balasaheb Desai SSK Limited (supra) to the facts of the present case stating that the same dealt with valuation of closing stock while here we are concerned with disallowance under Section 43B of the Act. However, in our view the principle laid down in the matter of Loknete Balasaheb Desai SSK Limited (supra) will apply to the present case because, Section 43B would apply where deduction of any amount payable as tax or duty is sought without actually making payment of that amount of tax / duty. In the present case, the fact that the value of the closing stock included the excise duty element, it cannot be said that excise duty liability was crystalised in the assessment year in question, especially when the excisable goods were lying at the factory premises of the assessee. Therefore, the decision of the Tribunal based on the decision of this Court in the case of Loknete Balasaheb Desai SSK Limited (supra) cannot be faulted. In view of the above, we see no reason to entertain the proposed questions of law. 4.The appeal is accordingly dismissed with no order as to costs. (M.S. Sanklecha, J.) (J.P. Devadhar, J.)