2015 (9) TMI 1054

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....ion of law : "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the duty paid by the assessee in advance under protest by treating the payment as loan and advance in the balance sheet without debiting the payment in the profit and loss account is allowable as a deduction under Sections 37 and 43B ?" 2. Heard Mr.J.Narayanasamy, learned Standing Cou....

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....r 43B on payment basis. But unfortunately, the said payment had been made pursuant to a conditional order passed by the High Court in a litigation between the assessee and the Department of Central Excise. In other words, the liability of the assessee to pay excise duty had not crystallized or at least attained finality. Therefore, the assessee did not show this amount in the profit and loss accou....

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....essee had not claimed the expenditure in its books of accounts, but had shown the same only as advance receivable in the balance sheet, the deduction could not have been allowed. The grievance of the Revenue is that without considering the said ground of attack, the Tribunal dismissed the appeal of the Revenue. 7. As rightly pointed out by the Tribunal in paragraph 5 of its order, the assessee ha....

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....e of any other statutory authorities for proving the liability was not considered by the Tribunal. 9. But, we do not think that the Department can ask for anything more than the factum of payment. The actual payment of the amount was not disputed even in the order of the Assessing Officer. What the Assessing Officer has recorded is that no order or demand of excise duty served upon the assessee w....