2019 (10) TMI 1199

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.... for short) dated 29.03.2016 for the Assessment Year (AY) 2012-2013. 2. The Assessee raised the following grounds of appeal: ''1. The Order of the Learned Commissioner of Income Tax (Appeals) and that of the Assessing Officer is contrary to the law, facts and circumstances of the case and in any case violative of the principles of equity and natural justice. Deduction u/s 43B of the Act 2. The Learned Commissioner of Income tax (Appeals) has erred in reducing the amount of Rs. 69,89,240/-received as security deposit from a customer from the deduction eligible u/s 43B of the Income Tax Act, 1961 for the excise duty paid under protest. 3. The Learned Commissioner of Income tax (Appeals) has erred in deny....

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....uring India Pvt. Ltd. is a company incorporated under the provisions of the Companies Act, 1956. It is engaged in the business of manufacturing ayurvedic drugs. The return of income for the AY 2012-13 was filed on 28.09.2012 disclosing total loss of Rs. 42,41,829/- under normal provisions of the Income Tax Act, 1961 (in short ''the Act'') and book profits of I1,22,56,032/- under the provisions of Section 115JB of the Act. Against the said return of income, the assessment was completed by the Deputy Commissioner of Income Tax, Circle-1, Pondicherry. (hereinafter called "AO") vide order dated 30.01.2015 passed u/s. 143(3) of the Act after making disallowance of Rs. 1,67,62,544/- under the provisions of Section 43B of the Act on the ground tha....

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..... 75,78,328/- received from RCPTL towards disputed excise duty liability is related to this amount of Rs.l,17,00,000/-. Therefore, I order that the amount of Rs. 75,78,328/- should be added and be set off against the disputed excise duty of Rs. 1,67,62,546/- as determined and allowed u/s 37 r.w.s 43B of the Act as per paragraph 6.21 and only the net amount of Rs. 9l,84,218/- shall be eligible for deduction in its computation of taxable income. 6.26 Even on this amount of Rs. 91,42,218/-, if the assessée has received any amount which is related to disputed excise duty from its customers/distributors then, only the net of the amount after set off shall be eligible for deduction either u/s 37 or u/s 43B of the Act, a the case m....

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....ntification of the amount payable is postponed, as held by the Supreme Court in the case of Kesoram Industries & Cotton Mills Ltd. v. CWT [1966] 59 ITR 767 and then again in the case of Setu Parvati Bayi v. CWT [1968] 69 ITR 864 . Similar was the view of the Federal Court in the case of Chatturam v. CIT [1947] 15 ITR 302, which relied upon the decision of the House of Lords in Whitney v. IRC [1925] 10 TC 88 (HL), that liability to tax does not depend on assessment; that ex hypothesis has already been fixed : the assessment order only quantifies the liability which is already definitely and finally created by the charging sections [Ishwarlal Parekh v. State of Maharashtra [1968] 70 ITR 95 (SC)]. Therefore the fact that in the absence ....