Riddhi Siddhi Gluco Biols Ltd, ... vs Department Of Income Tax

सुनवाई क तार ख/ Date of Hea ring : 21/11/2014 घोषणा क तार ख /Date of P ronouncement: 23/01/2015

आदेश /O R D E R

PER MUKUL Kr. SHRAWAT, JUDICIAL MEMBER :

This Misc. Application has been filed by the Revenue Department on 2nd of February, 2010 arising from the order of the Tribunal as mentioned in the above nomenclature dated 7.8.2009.

2. From the side of the Applicant, learned Sr.D.R., Mr. M.K. Singh appeared and placed reliance on this Misc. Application, relevant paragraphs are reproduced below:

"2. The disallowance on account of deferment of sales-tax of Rs.42,21,000/- has been made in the assessment as the assessee company has not produced any evidence to show that the above liability had been converted into loan. The deduction in respect of the amount of sales-tax liability, converted into loan, shall be allowed only if such conversion has been permitted and approved by the respective government and the assessee has to produce the MA No.36/Ahd/2010 in ITA No.1500/Ahd/2009 Dy.CIT, Ahmedabad Vs. M/s. Riddhi Siddhi Gluco Biols Ltd.

For A.Y. 2003-04 -2- necessary certificate in Form No.D, issued by the State Government in this regard. The assessee company, however, had not produced any such details/certificate. The Assessing Officer, therefore, disallowed the above liability u/s.43B of the Act. In Appeal, the Ld. CIT(A) deleted the addition, holding that the appellant has been given Sales-tax deferment benefit by the Karnataka Government and the Form No.D is not applicable to its unit in Karnataka. The department preferred appeal against the decision of CIT (A) and the Hon'ble ITAT, vide the above referred order, has dismissed the appeal of the department, holding that the certificate issued vide letter dated 05.11.2003 by Jt. Commissioner of Commercial Taxes fulfils the condition laid down by Board's circular as well as provisions of Section 43B of the Act, hence, Sales-tax department, Karnataka has allowed deferment of payment and therefore, addition cannot be made.

3. It is submitted that although the assessee is entitled to deferment, the working amount of Sales-tax payable has been made by order of Addl. Dy. Commissioner of Commercial Taxes (Assessments-II), Belgaum, consequent to passing rectification order under CST Act for year 2002-03. According to this order, the net tax payable has been worked out at Rs.28,28,648/- under KST and Rs.54,12,043/- under CST. The total of both these amounts exceeds the amount of addition made by Assessing Officer. The amount so worked out by Addl. Dy. Commissioner of Commercial Taxes (Assessments-II), Belgaum already takes care of deferment of scheme and even after that the payable amount has been worked out as mentioned above. The copy of order passed by Addl. Dy. Commissioner of Commercial Taxes (Assessments-II), Belgaum is enclosed herewith for your kind perusal.

4. In view of above, this Miscellaneous Application is being filed to draw attention of the ITAT in the above matter."

3. According to learned Sr.D.R., although it is not in dispute that there was a provision for providing a deferment of the Sales Tax liability but the learned Commissioner was expected to verify the quantum of the claim since the order was silent on this issue, therefore, the learned Tribunal as well has committed an error. This Misc. Application has been filed to rectify that error.

4. From the side of the respondent-assessee, learned AR, Mr. S.N. Soparkar appeared and pleaded that the Respected Tribunal has considered all those aspects and thereupon passed a detailed order. He MA No.36/Ahd/2010 in ITA No.1500/Ahd/2009 Dy.CIT, Ahmedabad Vs. M/s. Riddhi Siddhi Gluco Biols Ltd.

For A.Y. 2003-04 -3-

has placed reliance on certain portions of the order, for ready reference reproduced below:

"2. Apropos Ground No.l, the facts relevant are that it was noticed by the Assessing Officer that out of sales-tax deferment of Rs.629.26 lakhs as shown as outstanding in balance sheet, liability to the extent of Rs.42.21 lakhs pertained to previous year relevant to the assessment year under consideration. The Assessing Officer asked the assessee to produce certificate in Form D for ensuring that sales-tax deferment was converted into loan by respective Government authority. In response, the assessee vide its letter dt.26.3.2007stated that the amount of sales-tax deferment was treated as loan by the Commercial Tax Department. The assessee produced a copy of letter dt.23.3.2007 from the Department of Commercial Taxes, Belgauim. The assessee also referred to Circular No.496 dt.25.9.2987 and also relied on the decision in the case of CIT v. Mahalaxmi Bricks Manufacturing Pvt. Ltd [273 ITR 190 (P & H)] and CIT v. Bhagwati Autocast Ltd [261 ITR 481 (Guj)}. Considering the submissions as well as the provisions of law contained in Section 43B of the Income-tax Act, 1961, the Assessing Officer disallowed the amount of Rs.42.21 lakhs and added the same to the total income of the assessee. The relevant portion of the assessment order containing in paragraph 4.2 is reproduced as under :

"4.2. There is no dispute that the total Sales-tax liabilities of Rs.629.26 lakhs (previous yeari--Rs.587.05 lakhs) included Sales-tax of Rs.42.21 lakhs pertaining to current year. These liabilities of current year can only be deductible provided that the same was convened into loans and deferment for payment was allowed during the previous year in this regard. A copy of letter dated 23.03.2007 produced by the assessee from Commercial Department, Belgaum does not specifically speak about conversion of Sales tax liability into loan during the previous year itself and therefore,; it is not established that the deferment had actually been allowed during the previous year itself. The letter produced by the assessee has been issued by the Sales-tax department as late as on 23.03.2007 and it did not indicate the actual date of conversion of deferment of Sales-tax liability of Rs.42.21 lakhs. In view of this clear fact, the Sales-tax liabilities claimed by the assessee are hit by the provisions of Section 43B of the Act and the same is disallowed. With due respect to the decisions relied by the assessee, the facts in those cases are not similar to the assessee's case and therefore, the same are not applicable. The amount Rs.42.21 lakhs is accordingly disallowed and added back to the total income of the assessee."

3. Assessee preferred appeal before the CIT(A). Before the learned CIT(A) it was submitted by the assessee that the assessee is having manufacturing unit in Karnataka and Karnataka Government had amended Section 19-C of the Karnataka Sales Tax Act, whereby the Sales Tax deferment loan is treated as deemed to have been paid, subject to the transfer of the amount as loan. Since in the case of the assessee the amount has been treated as loan, therefore, in MA No.36/Ahd/2010 in ITA No.1500/Ahd/2009 Dy.CIT, Ahmedabad Vs. M/s. Riddhi Siddhi Gluco Biols Ltd.

For A.Y. 2003-04 -4- view of Board Circular No.496 dt.25.9.1987, the said sales tax deferment loan is eligible for deduction u/s.43B of the Act. In paragraph 4 of the Board Circular No.496 dt.25.9.1987, the Board have decided that where amendments are made in the Sales Tax Act on these lines, the statutory liability shall be treated to have been discharged for the purposes of Section 43B of the Act. Reliance was also placed on the decision of Madhya Pradesh High Court in case of ACIT v. Perfect Pumps (P) Ltd [(2007) 212 CTR (MP)

145. Considering the above submissions and evidence produced in support, the learned C1T(A) deleted the disallowance by observing in his order vide paragraph 3.2 as under :

"3.2. The submissions made by the A.Rs have been verified and the documents furnished are also examined. It is seen that the appellant has been given the Sales Tax liability deferment benefit by the Karnataka Government; Therefore I find that the appellant's claim is in its order. Form No.D as in Gujarat Government is not applicable to unit in Karnataka Government. Hence, the A.O. is directed to delete the disallowance made by him. Therefore, this ground of appeal is allowed."

4. Heard both parties and perused the material on record. To resolve the controversy, we may first refer to Circle No.496 (F.No.201/34/86-IT(A-II) dt.25.9.1987, which is reproduced as under:

"Several State Governments have introduced sales-tax deferral schemes as a part of the incentives offered to entrepreneurs settmg up industries in back-ward areas. Under these schemes, eligible units are permitted to collect sales-tax and retain such tax for a prescribed period. After this period, the sales-tax is to be paid to the Government either in lump sum or in instalments.

2. Sec. 43B of the IT Act, 1961 introduced by the Finance Act, 1983, w.e.f, 1st April, 1984 provides, inter alia, that a deduction in respect of any sum payable by the assessee by way of tax or duty under any law for the time being in force shall be allowed from the income of the previous year in which such sum is actually paid irrespective of the previous year in which the liability to pay such sum was incurred. Since the introduction of this provision, assessees who collect sales- tax but do not pay the amounts to the Government during the previous, under the deferral schemes provided by the State Governments are not entitled to the benefit of deduction from their income.

3. Representations have been received from various State Governments and others that cases of deferred sales-tax payments should be excluded from the purview of s. 43B as the operation of this provision has the effect of diluting the incentive offered by the deferral schemes.

4. The matter has been examined in consultation with the Ministry of law and the various State Governments. The Ministry of Law has opined that if the State Governments make an amendment in the Sales- tax Act to the effect that the sales-tax deferred under the scheme shall MA No.36/Ahd/2010 in ITA No.1500/Ahd/2009 Dy.CIT, Ahmedabad Vs. M/s. Riddhi Siddhi Gluco Biols Ltd.

For A.Y. 2003-04 -5- be treated as actually paid, such a deeming provision will meet the requirement of s. 43B.

5. The Government of Maharashtra have by the Bombay Sales- tax (Amendment) Act, 1987, made the amendment accordingly. The Board, have decided that where amendments are made in the sales- tax laws on these lines, the statutory liability shall be treated to have been discharged for the purposes of s. 43B of the Act.

6. The CITs may bring the contents of this Circular to the notice of all the officers working under them."

SOURCE : [Reported in (1988) 68 CTR (St) 109 : (1988) 169ITR (St) 53]

5. From the above circular it is crystal clear that the Ministry of Law has opined that if the State Governments make an amendment in the Sales Tax Act to the effect the sales tax deferred under the scheme shall be treated as actually paid, such a deeming provision will meet the requirements of section 43B. This circular has been explained by the Tribunal in the case of Morvi Horologial Industries v. ITO (36 LTD 115)(Ahd), by M.P.High Court in CIT v. K.N.Oil Industries (226 ITR 547)(MP) and also by Hon'ble Supreme Court in the case of CIT v. Gujarat Polyerete Pvt. Ltd. (246 ITR 463)(SC). Reading of these decisions suggests that provisions of Circular No.496 would apply only if a State Government had amended its Sales Tax Act to provide that the sales tax that the deferred under an incentive scheme framed by it would be treated as actually paid, so as to meet the requirements of section 43B of the Income-tax Act.

6. The facts undisputed are that the assessee is having manufacturing unit in Karnataka. Karanataka Government had amended the Sales Tax Act for providing deferment of the Sales Tax liability and to treat the said sales tax collected as loan for use of the assessee Company. In this connection, we may refer to Section 19C of the Karanataka Sales Tax Act, 1957, which is reproduced as under: ..........

Accordingly, the Joint Commissioner of Commercial Taxes, Vide letter dt. 5.11.2003 (copy placed on record) issued certificate of entitlement stating therein that the tax which is entitled for deferment shall be payable by the assessee's unit over a period of 5 years in ten equal half yearly installments commencing from the date of expiry of the period of deferment i.e. with effect from 14.12.2009. In view of the above factual matrix, we are of the considered view that the assessee having fulfilled all the conditions, the learned CIT(A) is perfectly justified in deleting the addition of Rs.42,21,000 on account of deferment of sales tax. Accordingly, we dismiss ground No.1 of the Revenue."

5. In the light of the above, we have heard both the sides. At the outset, it is worth to mention that the Respected Co-ordinate Bench has MA No.36/Ahd/2010 in ITA No.1500/Ahd/2009 Dy.CIT, Ahmedabad Vs. M/s. Riddhi Siddhi Gluco Biols Ltd.

For A.Y. 2003-04 -6-

discussed this issue at length after considering the facts of the case as well as the connected circulars to resolve this issue.

6. We have noted that there was no dispute that the assessee was having a manufacturing unit in Karnataka and the Karnataka Government had amended the Sales Tax Act for providing deferment of the Sales Tax liability. The Respected Co-ordinate Bench has examined that aspect after considering the notification issued by the said Government. As far as the question of quantum is concerned that too has been addressed by the respondent-assessee by placing on record the relevant orders and thereafter filed a written submission wherein it was clarified as under:

"(b) The amount of Rs.28,28,648/- under KST and Rs.54,12,043/- under CST, as per the order of the Addl. Dy. Commissioner of Commercial Taxes (Assessment-II), Begaum, dated 2.9.2004, is not sales tax deferment. It is of Net tax payable including Average Tax for the F.Y. 2002-03 and not the amount of deferment facility accorded to the company of Rs.8,07,262/-, Rs.

24,85,076/- and Rs.39,08,281/- for the F.Y. 2002-03 and the is much more than the disallowance made u/s.43B of the Act."

7. Because of these reasons that the legal aspect has been discussed at length by the Respected Co-ordinate Bench and that the correct factual position has also been brought notice of the Tribunal and thereupon they have decided the issue, we hereby hold that this Misc. Application has no force; hence deserves to be dismissed. We order accordingly.

8. In the result, the Misc. Application filed by the Revenue Department is dismissed.

Sd/- Sd/- (ANIL CHATURVEDI) (MUKUL Kr. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 23/01/2015 Prabhat Kr. Kesarwani, Sr. P.S. MA No.36/Ahd/2010 in ITA No.1500/Ahd/2009

Dy.CIT, Ahmedabad Vs. M/s. Riddhi Siddhi Gluco Biols Ltd.

For A.Y. 2003-04 -7-

आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आयु त / Concerned CIT 4. आयकर आयु त(अपील) / The CIT(A)-III, Ahmedabad 5. वभागीय त न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड फाईल / Guard file. आदेशानुस ार / BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad