2005 (3) TMI 21 - HC - Income Tax

Tax Tribunal: Refund of Central Excise duty not taxable under Section 41(1)

The Tribunal remanded the matter to ascertain if the refund of Central Excise duty was taxable under Section 41(1) of the Income Tax Act, 1961, based on ... Taxability of amount received as refund of excise duty – Ex.D. forms part of the turnover & is therefore a trading receipt – Hence sec. 41(1) is applicable and refund should be brought to tax – matter was rightly remanded back by tribunal to AO for decision whether deduction allowed earlier or not Issues Involved:1. Interpretation of Section 41(1) of the Income Tax Act, 1961 regarding the taxability of refund received by the assessee.2. Determination of whether the excise duty collected constitutes a trading receipt and its impact on the taxability of the refund.Issue 1: Interpretation of Section 41(1) of the Income Tax Act, 1961The case involved a reference relating to the Assessment Year 1984-85 where the respondent assessee received a refund of Central Excise duty. The Assessing Officer taxed the amount under Section 41(1) of the Act, which was upheld by the Commissioner of Income Tax (Appeals). However, the Tribunal remanded the matter to ascertain if the deduction had been allowed to the assessee in any past year, as a prerequisite for the refund to be assessable under Section 41. The Tribunal's decision was based on the condition that if no allowance or deduction had been granted in any year for the excise duty amount, then the refund would not be taxable under Section 41. The respondent had consistently argued that no deduction had been claimed or allowed for the excise duty, meeting the basic condition for Section 41(1) to apply. The Tribunal's decision to remit the issue to the Assessing Authority for verification did not have any flaws, leading to the first question being answered in favor of the assessee.Issue 2: Determination of the nature of excise duty collected and its impact on taxabilityRegarding the second question, despite the Commissioner recording the concession of taxability of the refund by the respondent, the Tribunal had already addressed this issue, making the concession irrelevant to the remand order. As for the collection of excise duty as a trading receipt, it was acknowledged that excise duty forms part of the turnover and is considered a trading receipt. However, this acknowledgment did not affect the taxability of the refund under Section 41(1) of the Act. Consequently, the first part of the second question was answered in favor of the assessee, while the second part was answered in favor of the Revenue. No costs were awarded in this judgment.---