COMMISSIONER OF INCOME-TAX Vs. EMKAY GLASS WORKS

JUDGEMENT

(1.) THE Income -tax Appellate Tribunal, New Delhi, has referred the following two questions of law under Section 256(2) of the Income -tax Act, 1961 (hereinafter referred to as 'the Act') for opinion to this Court: 1. Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in restoring back the matter back to the file of the Commissioner of Income -tax (Appeals) to ascertain whether the deduction was allowed to the assessee in any year in the past for attracting the provisions of Section 41(1) of the Income -tax Act, 1961?

(2.) WHETHER the hon'ble Income -tax Appellate Tribunal while directing so, was correct in law, ignoring the facts that (i) taxability of refund was conceded by the assessee before the Commissioner of Income -tax (Appeals); and (ii) the collection of excise duty of Rs. 98,607 was undisputedly a trading receipt? 2. The reference relates to the assessment year 1984 -85.

(3.) THE respondent -assessee had received a sum of Rs. 98,077 as refund of Central excise duty on January 24, 1983 in consequence of order of the Collector, Central Excise, dated January 27, 1981. The Assessing Officer brought the said amount to tax under Section 41(1) of the Act, which order was upheld by the Commissioner of Income -tax (Appeals). However, the Tribunal has remanded the matter to the Assessing Officer to find out as to whether the amount has been allowed as a deduction in any of the years whether expressly or impliedly and if allowance or deduction has not been allowed in any year either expressly or impliedly for any reason whatsoever, the refund received by the assessee would not be assessable under Section 41 of the Act as the basic condition for attracting the provisions of Section 41 of the Act would be absent.