TaxTMI 
TaxTMI 
2013 (3) TMI 394
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....pparent from the record? 3. Without prejudice to question no. 2, whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in law in allowing miscellaneous application of the assessee on the ground that its order dated 26.2.2002 suffers from mistakes apparent from the record? 4. Whether on the facts and circumstances of the case, the Income Tax Appellate Tribunal is liable to be set aside on the ground that the Tribunal has no inherent power like a court of law to review its own order? 5. Whether on the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in law in allowing the claim of the assessee on account of Market Fee while the Assessing Officer disallowed the claim of the assessee on account of Market Fee amounting to Rs. 11,05,123/- by following the decision of the Income Tax Appellate Tribunal rendered in ITA No. 586/Alld/1984 for the assessment year 1980-81 and holding that it was contingent liability not due and covered under section 43-B of the Income Tax Act, 1961? 6. Whether on the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in law in allowing the....
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....rket fee' was tax on the purchase of sugarcane and sale of sugar and had actually not paid any amount in the head of 'market fee'. Change of the nomenclature as 'market fee' under the Bihar Agricultural Produce Market Act, 1960 and the Bihar Agricultural Produce Market Rules, 1975 does not make any difference, as according to own case of the assessee, it was tax. Under Section 43B of the Act, deduction can only be allowed on actual payment. Since no payment was made in this head as such the assessee is not entitled for any deduction in this head. On these findings, the Assessing Officer made addition of Rs. 11,05,123/-. The assessee filed an appeal from the aforesaid order. The appeal was heard by the Commissioner of Income-tax (Appeals), Kanpur who by order dated 13.08.1990 affirmed the findings of the Assessing Officer in this respect. The assessee filed a second appeal before the Tribunal. The Tribunal by order dated 26.02.2002 held that Section 43B of the Act was amended by Finance Act, 1987. The amendment is curative in nature and applied retrospectively as held by the Supreme Court in Allied Motor (P) Ltd. Vs. Commissioner of Income Tax and others (1997) 224 ITR 677 as such S....
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....estions of law No. 1 to 4. 6. So far as substantial questions of law No. 5 and 6 are concerned, the counsel for the appellant submitted that Section 43B was inserted in the Act by Finance Act, 1983 and provision has been made that deduction for any sum payable by the assessee by way of tax or duty under any law can only be allowed in case actual payment is made during the relevant period. Section 43B was again amended by Finance Act, 1988 and in substance the words "cess or fee by whatever name called" has been added in it. Nature of the amendment is curative, as the legislature has merely cured the defect as such the amendment is retrospective. He placed reliance on Allied Motor (P) Ltd. Vs. Commissioner of Income Tax and others (1997) 224 ITR 677 (SC). 7. In reply, the counsel for the assessee submitted that in Allied Motor (P) Ltd. Vs. Commissioner of Income Tax and others (1997) 224 ITR 677, Supreme Court was examining the nature of amendment made by Finance Act, 1987 by which Proviso to Section 43B was amended. The Proviso and Explanation to the main section are read with reference to the main section as such it was held that the amendment made by Finance Act, 1987 was curat....
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....at previous year in which such sum is actually paid by him. Explanation.-For the removal of doubts, it is hereby declared that where a deduction in respect of any sum referred to in clause (a) or clause (b) of this section is allowed in computing the income referred to in Section 28 of the previous year (being a previous year relevant to the assessment year commencing on the 1st day of April, 1983 or any earlier assessment year) in which the liability to pay such sum was incurred by the assessee, the assessee shall not be entitled to any deduction under this section in respect of such sum in computing the income of the previous year in which the sum is actually paid by him.". 9. Section 43B as amended by Finance Act, 1988 is quoted below: Section 12. Amendment of Section 43B:- In Section 43B of the Income Tax Act(as amended by Section 15 of the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), with effect from 1st day of April, 1989: (i) for clause (a), the following clause shall be substituted, namely:- "(a) any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force, or"; 10. Thus in view of the legis....