TaxTMI 
TaxTMI 
2006 (9) TMI 142
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.... the Appellate Tribunal is right in law and on facts in the disallowance of Rs. 6,55,595/- being the amount of excise duty collected by the assessee but not paid under the provisions of section 43B of the Income-tax Act?" 2. The short facts necessary for disposal of the present reference are that the assessee, who was engaged in the business of manufacture of textile machinery parts and accessories and auto spare parts, maintained the mercantile system of accounting and for the assessment year 1986-87, the accounting year ended on December 31, 1985. During the course of the assessment proceedings, the Assessing Officer noted that the assessee had collected excise duty of Rs. 7,75,655/-, but had not paid the same to the Government, therefor....
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....the facts of the case. He, accordingly, confirmed the addition. 2.2 At the instance of the assessee, the matter went to the Tribunal, which held that the receipt of excise from the purchasers was, in fact, the deposit by or on behalf of various customers, to whom the assessee had sold the aforesaid items. The Tribunal also held that as there was stay by the High Court, the assessee was not required to pay to the concerned Department and if he was required to refund the money to the customers, then, in such a case, the amount would partake of the character of deposit. The Tribunal also observed that the provisions of section 43B of the Act would not be attracted. 3. Mrs. Bhatt, learned counsel for the Revenue, submits that the Tribunal ha....
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....so acting as an auctioneer. In respect of the sales effected by it as auctioneer, the said appellant realised during the relevant period, in addition to the commission, Rs. 32,986/- as sales tax. The said amount was credited separately in its account books under the head "Sales tax collection account". The said appellant did not pay the amount of sales tax to the actual owner of the goods, nor did it deposit the amount realised by it as sales tax in the State Exchequer, because it took the position that the statutory provision creating that liability upon it was not valid, or refund it to the persons from whom it had been collected. In the cash memos issued by the appellant to the purchasers in the auction sales, the said appellant was show....
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....R 615, an identical situation was again posed before the Supreme Court with a further submission that there was no provision in the Bengal Finance (Sales Tax) Act, 1941, under which the sales tax was realised by the appellant in that case corresponding to sub-section (3) of section 9B of the Orissa Sales Tax Act, 1947. The Supreme Court rejected the contention and observed that the price at which the goods were sold to the purchaser, was inclusive of the sales tax and as such, the sale price, inclusive of the sales tax, would be the trade receipt in the hands of the trader. The Supreme Court, relying upon the judgment in the matter of Chowringhee Sales Bureau P. Ltd. [1973] 87 ITR 542, observed that the sales tax would be included in the tr....
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....me being in force or any sum payable by the assessee as an employer by way of contribution to provident fund or superannuation fund or gratuity fund or any other fund for the welfare of the employees, only if the same is actually paid by him. If the same is not paid and is kept apart in some different account, then, the same does not make any difference because the amount is still in the hands of the trader/assessee. 8. The assessee cannot be allowed to say that as there was a dispute about the liability to some extent, or to an extent absolute, therefore, on one side, it would recover the tax, keep it with it, would not pay the same, but, still would be entitled to deduction under section 43B of the Act. In view of the above referred judg....