Commissioner of Income Tax vs Bhagwati Autocast Ltd.

K.A. Puj, J.

In this reference, at the instance of the applicant-revenue, the following question of law is referred to for the opinion of this court for the assessment year 1985-86 :

"Whether the Appellate Tribunal is right in law and on facts in holding that the amount of Rs. 2,22,620 representing deferred sales tax, i.e., unpaid sales-tax liability did not attract the provisions of section 43B of the Income Tax Act ?"

In this reference, the only dispute is about disallowance u/s 43B of the Income Tax Act, 1961 (hereinafter referred to as the Act'') for unpaid sum of Rs. 2,22,620 for sales tax. It is the stand of the assessee before the assessing authority that the State Government had allowed the assessee to return sales tax collected as a sort of incentive provided for the growth of industry. On this basis, it was contended by the assessee that its case was covered by the provisions contained in section 43B of the Income Tax Act. The Income Tax Officer has, however, rejected the assessee''s claim.

Being aggrieved by the said order of the Income Tax Officer, the assessee has preferred an appeal before the Commissioner (Appeals) and while disposing of the said appeal, the Commissioner (Appeals) has taken note of Circular No. 496, dated 29-5-1987 issued by the Central Board of Direct Taxes and on the basis of the said circular, the Commissioner (Appeals) has restored the matter to the file of the assessing officer with a direction to verify as to whether any amendment of the Gujarat Sales Tax Act had been made in the light of the Board''s circular and then decide the matter afresh. Thereafter, the attention of the taxing authority was drawn to the Gujarat Government Resolution No. INC/1087/143-1, dated 21-3-1988 wherein the entire position was clarified. The said resolution was made operative with effect from 1-4-1983. On the basis of the said resolution, it was contended by the assessee before the taxing authorities that in the light of the Board''s Circular No. 496, dated 25-9-1987, the assessee was entitled to the relief regarding deferred payment of sales tax not hit by section 43B, as Gujarat Government Resolution dated 21-3-1988, read with the clarification issued by the Sales Tax department satisfied the condition laid down in Board''s Circular. On the basis of the circular issued by the Central Board of Direct Taxes as well as the resolutions of the State Government as referred to above, the Tribunal has taken the view that the requirements of getting exemption from the mischief of section 43B in respect of Sales Tax Deferment Scheme of the Gujarat Government are satisfied. The Tribunal, therefore, held that the amount of Rs. 2,22,620 of deferred sales tax is not caught by mischief of section 43B of the Act.

Being aggrieved by the aforesaid decision of the Tribunal, the revenue has come in reference before this court and the above question was referred for the opinion of this court.

Heard Mr. Tanvish Bhatt, learned standing counsel appearing for the applicant-revenue. Nobody appears on behalf of the respondent-assessee though the notice was duly served. At the time of hearing of this reference, our attention is drawn to the decision of the Hon''ble Supreme Court in the case of Commissioner of Income Tax Vs. Gujarat Polycrete Pvt. Ltd., wherein it is held that the Central Board of Direct Taxes Circular dated 25-9-1987 would apply only if a State would have amended its sales tax law to provide that the sales tax that was deferred by 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. It was further held on the basis of the facts of that case that notice had not been taken of the Gujarat Sales Tax Act, 1969 to ascertain whether or not there was such an amendment. The Hon''ble Supreme Court thereafter has taken the view that the question whether the 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. Mr. Bhatt has, therefore, urged that the matter may be remanded to the Tribunal to ascertain as to whether any amendment is made by the State Government in Gujarat Sales Tax Act, 1969.

Here, in the present case as already observed hereinabove, the Gujarat Government has passed resolution bearing No. INC/1087/143-1, dated 21-3-1988 and the said resolution was made operative from 1-4-1983. The period involved in the present assessment is, therefore, covered by the said resolution. The benefit is given vide Circular dated 25-9-1987 wherein the Board has made it clear that if the sales tax due to the Government is converted as a loan which may be repaid by the assessee subsequently by instalments, the department shall see that the sales tax dues as actually paid for all purposes is available to the assessee. The combined reading of this circular of CBDT as well as the resolution issued by the State Government would make it clear that the assessee is entitled to relief and benefit given u/s 43B can be claimed by the assessee.

It is required to be noted here that subsequently, the State Government has made an amendment in the Gujarat Sales Tax Act and second proviso to section 47(4) of the Act was inserted by Gujarat V of 1988 with effect from 24-3-1988 which reads as under :

"Provided further that notwithstanding anything contained in this Act or in the rules made thereunder but subject to such conditions as the State Government or the Commissioner may by general or special order specify, where a dealer to whom incentives by way of deferment of sales tax or purchase tax or both have been granted by virtue of an eligibility certificate granted by the Commissioner of Industries, Gujarat State or any officer authorised by him in this behalf and where a loan liability equal to the amount of any such tax payable by such dealer has been raised by the Gujarat Industrial Investment Corporation Limited or the Gujarat State Financial Corporation Limited, then such tax shall be deemed, in the public interest, to have been paid."

Since the resolution issued by the State Government earlier was made effective from 1983, the assessee''s case was covered by the said resolution and amendment made thereafter on 24-3-1988 is clarificatory in nature. We are, therefore, of the view that the Tribunal was right in deleting the addition made by the Income Tax Officer by invoking the provision of section 43B in respect of unpaid sales tax liability.

We, therefore, answer this question in the affirmative, i.e., in favour of the assessee and against the revenue. This reference is, accordingly, disposed of with no order as to costs.