CIT & ANR. Vs. DIGITAL GLOBALSOFT LTD.

JUDGEMENT

(1.) The Revenue has preferred this appeal by challenging the order dated 20-6-2005, passed in I.T.A. No. 1689/ Bang/2002 on the following substantial questions of law:

(2.) During the course of arguments, learned senior counsel for the respondent-assessee has brought to our notice the notes of the Department with regard to the contention of the assessee that there was actual payment of customs and excise duty so as to seek the benefit under section 43B of the Act. In the said notes, it is categorically stated that while computing the total income the assessing officer had disallowed a sum of Rs. 5,29,47,942 under section 43B(a) of the Act on the ground that the assessee-company had not established the actual payment of customs and excise duty with necessary evidence of such payment on or before the due date. In view of the said statement made in the notes of the Assistant Commissioner of Income-tax (Assessing Officer), the contention of the learned senior counsel is that the decision in Berger Paints India Ltd. v. CIT, 2004 266 ITR 99 cannot be made applicable straight-away. In the circumstances, it is just and proper to remand the matter back to the assessing officer to consider the entire issue by giving an opportunity to the respondent-assessee to produce the necessary evidence to establish that there had been an actual payment of customs and excise duty before the due date so as to be entitled to the benefit under section 43B of the Act. Under the circumstances, without answering the substantial questions of law, the appeal is allowed and the matter is remanded back to the Assessing Officer to decide the issue to consider the question under section 43B of the Act and pass orders in accordance with law depending upon the proof of the fact that the respondent-assessee has paid excise and customs duty before the due date.