TaxTMI 
TaxTMI 
2006 (3) TMI 74
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.... fee, was payable on the import of spirits. Initially, this fee which was introduced for the first time in 1981, was leviable at the rate of Rs. 0.60. The rate was reduced to Rs. 0.50 by subsequent amendment of rule 6. The respondent/assessee' claim for deduction of the amounts payable was rejected by the Income-tax Officer on the ground that section 43B of the Income-tax Act, 1961 applied. The assessee preferred an appeal to the Commissioner. The Commissioner dismissed the appeal holding "fee payable to the Government by whatever name it is called is a duty and hence it is hit by mischief of section 43B." The respondent/assessee, carried the matter by way of an appeal before the Income-tax Appellate Tribunal. The Tribunal noticed the sub....
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....? (3) Without prejudice to questions Nos. (1) and (2) above whether on the facts and in the circumstances of the case, and on a correct interpretation of the income-tax law and the State excise law, the Tribunal was justified in holding that the fees payable by the assessee was not excise duty and thereby deleting the addition made in the assessment in this regard?" The High Court answered the reference in favour of the assessee holding that the amount paid by the assessee was really neither a duty nor a cess nor fee but was a price for the grant of a privilege. Initially when the appeal was entertained by this court the appellant had argued that the amount payable on the import of spirits was a fee. That was why the court was of the opi....
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...."duty" under section 43B before its amendment would cover both duties. Mr. Joseph Vellapally, learned senior counsel appearing on behalf of the respondent, has submitted that this issue had never been raised at any stage of the proceedings. It was submitted that even before the Tribunal the case of the Department was that it was an excise duty. It is submitted that the questions as framed including question No. 3 would clearly show that the Department was raising the issue of the impost being countervailing duty for the first time before this court. We find that the order of the Commissioner of Income-tax (Appeals) is not very clear on this aspect. As far as the Tribunal is concerned, it is true that the submission of the Department was t....