{"id":163836,"date":"2010-06-10T00:00:00","date_gmt":"2010-06-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-si-group-india-ltd-vs-the-asst-commissioner-of-on-10-june-2010"},"modified":"2015-11-13T10:41:31","modified_gmt":"2015-11-13T05:11:31","slug":"ms-si-group-india-ltd-vs-the-asst-commissioner-of-on-10-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-si-group-india-ltd-vs-the-asst-commissioner-of-on-10-june-2010","title":{"rendered":"M\/S. Si Group India Ltd vs The Asst. Commissioner Of on 10 June, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
M\/S. Si Group India Ltd vs The Asst. Commissioner Of on 10 June, 2010<\/div>\n
Bench: Dr. D.Y. Chandrachud, J.P. Devadhar<\/div>\n
                                      1\n\n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                               \n                                 O. O. C. J.\n\n\n\n\n                                                       \n                  INCOME TAX APPEAL NO.1511 OF 2009\n                                WITH\n                  INCOME TAX APPEAL NO.1512 OF 2009\n\n\n\n\n                                                      \n    M\/s. SI Group India Ltd.                              ..Appellant.\n              Vs.\n    The Asst. Commissioner of \n    Income Tax Range 3(3)                                 ..Respondent.\n\n\n\n\n                                          \n                     WRIT PETITION NO.2368 OF 2009\n                             ig  WITH\n                     WRIT PETITION NO.2369 OF 2009\n                           \n    M\/s. SI Group India Ltd.                              ..Petitioner.\n              Vs.\n    The Income Tax Appellate Tribunal,\n    Mumbai and others                                     ..Respondents.\n          \n       \n\n\n\n                                     .....\n    Mr. Soli E. Dastur, Senior Advocate with Mr. Niraj Sheth and Mr. \n    Sanjiv M. Shah  for the Appellant in both Appeals.\n\n\n\n\n\n    Mr. Soli E. Dastur, Senior Advocate with Mr. Niraj Sheth and Mr. Atul \n    K. Jasani for the Petitioner in both the Petitions.\n\n    Mr. Vimal Gupta for the Respondents.\n                                   .....\n\n\n\n\n\n                                      CORAM : DR.D.Y.CHANDRACHUD &\n                                                     J.P.DEVADHAR, JJ.\n<\/pre>\n
                                                 10 June 2010.\n<\/p>\n
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\n                                               2<\/span><\/p>\n
    ORAL JUDGMENT (Per Dr. D.Y.CHANDRACHUD, J.) :\n<\/p>\n
    1.          This   judgment   will   govern   two   appeals   instituted   by   the <\/p>\n
    assessee under Section 260-A of the Income Tax Act, 1961 and two <\/p>\n
    petitions   under   Article   226   of   the   Constitution.     Although   several <\/p>\n
    questions   are   raised   in   the   appeals,   for   the   purposes   of   these <\/p>\n
    proceedings it would be sufficient to deal with the following question <\/p>\n
    of law on which the appeals are admitted :\n<\/p>\n
                “Whether on the facts and in the circumstances of the case
\n                and   in   law,   the   Tribunal   was   right   in   completely <\/p>\n
                disregarding the contention of the Appellant that there was
\n                no   remission   or   cessation   of   the   sales   tax   liability   on
\n                account   of   payment   of   the   present   value   thereof   being
\n                made   to   SICOM   since   the   sales   tax   authorities   had   not <\/p>\n
                given   credit   of   the   said   payment   against   the   sales   tax <\/p>\n
                liability;”\n<\/p><\/blockquote>\n
    2.          The   Petitioner   has   an   industrial   unit   in   the   district   of <\/p>\n
    Raigad   which   is   a   notified   backward   area.   The   Government   of <\/p>\n
    Maharashtra issued a package scheme of incentives in 1993 by which <\/p>\n
    a   scheme   for   the   deferral   of   sales   tax   dues   was   announced.     The <\/p>\n
    Petitioner   had   during   the   period   1   May   1999   and  31   March   2000 <\/p>\n
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\n                                             3<\/span><\/p>\n
    collected an amount of Rs.1,79,68,846\/-   towards sales tax.   Under <\/p>\n
    the   scheme   the   amount   was   payable   in   five   annual   installments <\/p>\n
    commencing   from   April   2010   and   the   liability   was   treated   as   an <\/p>\n
    unsecured loan in the books of account of the assessee.   The State <\/p>\n
    Industrial   and   Investment   Corporation   Of   Maharashtra   Limited <\/p>\n
    (SICOM) offered to the assessee an option for the settlement of the <\/p>\n
    deferred sales tax liability by an immediate one time payment.   The <\/p>\n
    assessee   paid   an   amount   of   Rs.50,44,280\/-   to   SICOM   which <\/p>\n
    according   to   the   assessee   represented   the   net   present   value   as <\/p>\n
    determined   by   SICOM.         Payment   was   made   by   the   assessee   to <\/p>\n
    SICOM on  26 June 2000.  The difference between the deferred sales <\/p>\n
    tax and its present value amounting to Rs.1.29 Crores was treated as <\/p>\n
    a capital receipt and was credited in the books of the assessee to the <\/p>\n
    capital reserve account.\n<\/p>\n
    3.         The Assistant Commissioner of Income Tax, Range 3(3), in <\/p>\n
    the   assessment   order   for   Assessment   Year   2000-01   brought   the <\/p>\n
    aforesaid difference of Rs.1.29 Crores to tax under Section 41(1) of <\/p>\n
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\n                                               4<\/span><\/p>\n
    the Income Tax Act 1961.  The appeal filed by the assessee before the <\/p>\n
    Commissioner   (Appeals)   for   2000-01   as   well   as   the   appeal   for <\/p>\n
    2001-02   came   to   be   dismissed   by   the   appellate   authority.     The <\/p>\n
    Tribunal   dismissed   the   appeals   filed   by   the   assessee   for   these   two <\/p>\n
    Assessment Years by a common order dated 6 January 2009.   The <\/p>\n
    assessee   then   moved   the   Tribunal   in   a   miscellaneous   application <\/p>\n
    under Section 254 which was dismissed on 10 September 2009.\n<\/p>\n
    4.          Accordingly the assessee has filed two appeals before this <\/p>\n
    Court   under   Section   260-A   to   challenge   the   principal   order   of   the <\/p>\n
    Tribunal   dismissing   the   appeals   for   Assessment   Years   2000-01   and <\/p>\n
    2001-02.  The Petitions under Article 226 questioned the correctness <\/p>\n
    of the order passed by the Tribunal dismissing the applications under <\/p>\n
    Section 254.   During the course of the proceedings, we have heard <\/p>\n
    submissions on behalf of counsel appearing on behalf of the assessee <\/p>\n
    and counsel appearing on behalf of the Revenue on the merits of the <\/p>\n
    appeals   filed   before   this   Court   under   Section   260-A   and   which   as <\/p>\n
    noted earlier have been admitted.  In the view which we are inclined <\/p>\n
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\n                                                5<\/span><\/p>\n
    to take on the appeals, the Petitions under Article 226, challenging <\/p>\n
    the   order   of   the   Tribunal   under   Section   254   would   be   rendered <\/p>\n
    redundant.\n<\/p>\n
    5.          On behalf of the assessee, learned senior counsel submitted <\/p>\n
    that the principal requirement for the applicability of Section  41 is <\/p>\n
    that the assessee must obtain a benefit in respect of a trading liability <\/p>\n
    by   way   of   a   remission   or   cessation   thereof.     The   two   submissions <\/p>\n
    which have been urged on behalf of the assessee are that (i) there <\/p>\n
    was no cessation of the liability of the assessee in the present case in <\/p>\n
    respect of the payment of the sale tax dues; and (ii) assuming that <\/p>\n
    there was a cessation, no benefit was obtained by the assessee.  The <\/p>\n
    submission which has been urged on behalf of the assessee is that as a <\/p>\n
    matter   of   fact   the   issue   pertaining   to   the   sales   tax   liability   was <\/p>\n
    decided by the Sales Tax Tribunal by its judgment dated 8 February <\/p>\n
    2008   and   the   Tribunal   specifically   upheld   the   order   passed   by   the <\/p>\n
    lower   authorities   declining   to   give   credit   to   the   assessee   of   the <\/p>\n
    payment   which   was   made   to   SICOM.     The   matter,   the   court   is <\/p>\n
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\n                                                6<\/span><\/p>\n
    informed, is pending in reference and consequently at this stage, so <\/p>\n
    long as the order of the Tribunal continues to hold the field, it cannot <\/p>\n
    be   inferred     that   there   was   a   remission   or   cessation   of   liability.\n<\/p>\n
    Insofar as the second submission is concerned, the argument before <\/p>\n
    the Court is that the assessee in paying the net present value of the <\/p>\n
    deferred liability to pay the sales tax dues of Rs.1.29 Crores has not <\/p>\n
    obtained   any   benefit   as   such   within   the   meaning   of  Section   41(1) <\/p>\n
    since the payment of Rs.50.44 lacs represents only the present value <\/p>\n
    of   the   liability   to   make   a   deferred   payment   of   Rs.1.79   Crores   in <\/p>\n
    future.\n<\/p>\n
    6.          On the other hand, it was urged on behalf of the Revenue <\/p>\n
    that the order of the Sales Tax Tribunal upon which reliance has been <\/p>\n
    placed by the assessee would in fact indicate that the payments which <\/p>\n
    were made by the assessee were regarded as having a nexus towards <\/p>\n
    payments of the sales tax dues and liberty was granted to the assessee <\/p>\n
    upon   obtaining   a   valid   document   under   the   package   scheme   of <\/p>\n
    incentives to be considered for the relevant period towards payment <\/p>\n
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\n                                             7<\/span><\/p>\n
    of the deferred amount.\n<\/p>\n
    7.        Section  41(1)(a) of the Act provides as follows :\n<\/p>\n
              “41.(1) Where an allowance or deduction has been made in
\n              the assessment for any year in respect of loss, expenditure <\/p>\n
              or   trading   liability   incurred   by   the   assessee   (hereinafter
\n              referred to as the first mentioned person) and subsequently
\n              during any previous year –\n<\/p><\/blockquote>\n
              (a)         the first mentioned person has obtained, whether
\n              in cash or in any other manner whatsoever, any amount in <\/p>\n
              respect   of   such   loss   or   expenditure   or   some   benefit   in
\n              respect   of   such   trading   liability   by   way   of   remission   or
\n              cessation thereof, the amount obtained by such person or <\/p>\n
              the value of benefit accruing to him shall be deemed to be
\n              profits and gains of business or profession and accordingly
\n              chargeable   to  income   tax   as   the   income   of   that   previous
\n              year, whether the business or profession in respect of which <\/p>\n
              the allowance or deduction has been made is in existence in <\/p>\n
              that year or not;”\n<\/p><\/blockquote>\n
    8.        In order  that the provisions of sub section  (1) should be <\/p>\n
    attracted the first requirement is that an allowance or deduction must <\/p>\n
    have been made in the assessment for any year in respect of a loss, <\/p>\n
    expenditure or trading liability incurred by the assessee.  The liability <\/p>\n
    of the assessee to pay sales tax is undisputedly a trading liability in <\/p>\n
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\n                                             8<\/span><\/p>\n
    respect  of which  an allowance  or deduction  had  been made  under <\/p>\n
    Section 43B. However, under clause (a) of sub section (1) it is inter <\/p>\n
    alia required that the assessee ought to have obtained “some benefit <\/p>\n
    in respect of such trading liability by way of remission or cessation <\/p>\n
    thereof”.  This postulates that there must be a remission or cessation <\/p>\n
    of the trading liability and that consequently a benefit must enure to <\/p>\n
    the assessee.   In the present case, the dispute between the assessee <\/p>\n
    and the Revenue is as to whether there was a remission or cessation <\/p>\n
    of the liability on account of sales tax.\n<\/p>\n
    9.         The   assessee   had   collected   an   amount   of   Rs.1.79   Crores <\/p>\n
    towards sales tax dues during the period 1 May 1999 and 31 March <\/p>\n
    2000.     Under   the   package   scheme   of   incentives   announced   by   the <\/p>\n
    Government of Maharashtra in 1993 the sales tax dues had to be paid <\/p>\n
    in   five   installments   commencing   from   April   2010.     SICOM   as   the <\/p>\n
    implementing  agency quantified,  according to the assessee, the net <\/p>\n
    present value of the deferred liability of the assessee at Rs.50.44 lacs <\/p>\n
    which was paid by the assessee to SICOM.   However, the sales tax <\/p>\n
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\n                                                 9<\/span><\/p>\n
    officer while passing the assessment order on 18 March 2004 did not <\/p>\n
    consider   the   amount   paid   to   SICOM   as  repayment   of   the   deferred <\/p>\n
    liability   of   the   assessee   to   the   extent   of   Rs.1.79   Crores   under   the <\/p>\n
    Bombay Sales Tax Act, 1959 and  Central Sales Tax Act, 1956.  The <\/p>\n
    appeals filed by the assessee before the Deputy Commissioner of Sales <\/p>\n
    Tax were dismissed upon which the assessee filed a second appeal <\/p>\n
    before   the   Maharashtra   Sales   Tax   Tribunal.     The   Tribunal,   by   its <\/p>\n
    judgment   dated   8   February   2008   upheld   the   order   of   the   lower <\/p>\n
    authorities of not giving credit of the payment  made by the assessee <\/p>\n
    to   SICOM.     In   these   proceedings,   neither   the   validity   of   the   order <\/p>\n
    passed by the Sales Tax Tribunal nor for that matter the correctness <\/p>\n
    of   the   reasons   that   weighed   with     the   Tribunal   can   be   called   into <\/p>\n
    question.  The Tribunal observed that though the assessee had made <\/p>\n
    a   premature   payment   of   the   deferred   tax   in   accordance   with   the <\/p>\n
    scheme   issued   by   the   Department   of   Industries   of   the   State <\/p>\n
    Government under the package  scheme of incentives of 1993,   the <\/p>\n
    payment   of   the   net   present   value   was   to   be   made   in   the   challan <\/p>\n
    prescribed under the Sales Tax Act which constituted the lawful mode <\/p>\n
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\n                                               10<\/span><\/p>\n
    of   making   payment   and   the   payment   which   was   made   to   SICOM <\/p>\n
    would nonetheless have to follow the procedure prescribed under the <\/p>\n
    Act.  The Tribunal was of the view that the decision of the assessing <\/p>\n
    authority and of the Deputy Commissioner of Sales Tax   not to give <\/p>\n
    credit to the payment made to SICOM would have to be upheld, but <\/p>\n
    left it open to the assessee to procure  a valid document under the <\/p>\n
    scheme which would be “considered for relevant period for relevant <\/p>\n
    deferred amount”.\n<\/p>\n
    10.         The net result of the order of the Sales Tax Tribunal dated <\/p>\n
    8 February 2008 is to uphold the decision of the assessing authority <\/p>\n
    declining   to   grant   credit   of   the   payment   made   by   the   assessee   to <\/p>\n
    SICOM   towards   discharge   of   the   deferred   sales   tax   liability.     As   a <\/p>\n
    matter of fact, on 22 July 2008 a notice of demand was issued under <\/p>\n
    Section 38 of the Bombay Sales Tax Act of 1959 to the assessee by the <\/p>\n
    Deputy Commissioner of Sales Tax, Navi Mumbai in the total amount <\/p>\n
    of Rs.1,33,13,555\/-.  Having regard  both to the order passed by the <\/p>\n
    Sales   Tax   Tribunal   on   8   February   2008   and  the   notice   of  demand <\/p>\n
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\n                                                 11<\/span><\/p>\n
    issued on 22 July 2008, it is not possible for the Court to accept the <\/p>\n
    contention that there was a remission or cessation of liability.  Since <\/p>\n
    the   record   before   the   Court   does   not   disclose   that   there   was   a <\/p>\n
    remission or cessation of liability, one of the requirements spelt out <\/p>\n
    for the applicability of Section  41(1)(a) has not been fulfilled in the <\/p>\n
    facts of the present case.\n<\/p>\n
    11.<\/p>\n
                 In  the view that we have taken it is not necessary for the <\/p>\n
    Court to address itself to the wider issue as to whether the assessee, <\/p>\n
    in   paying   the   net   present   value   of   the   deferred   sales   tax   liability <\/p>\n
    should   be   regarded   as   having   obtained   any   benefit   within   the <\/p>\n
    meaning of Clause (a) of sub section (1) of Section 41.  The aforesaid <\/p>\n
    issue is kept open to be adjudicated upon at the appropriate stage in <\/p>\n
    appropriate proceedings.\n<\/p>\n
    12.          The Tribunal, in our view, was in error in proceeding on <\/p>\n
    the   basis   that   there   was   a   remission   or   cessation   of   liability.     The <\/p>\n
    attention of the Tribunal was drawn to the order passed by the Sales <\/p>\n
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\n                                               12<\/span><\/p>\n
    Tax Tribunal.  The fact that the order of the Sales Tax Tribunal was <\/p>\n
    placed   for   consideration   before   the   Income   Tax  Appellate   Tribunal <\/p>\n
    emerges   from   the   order   of   the   Tribunal   itself.   Consistent   with   the <\/p>\n
    order passed by the Sales Tax Tribunal which continues to hold the <\/p>\n
    field, the ITAT could not have come to the conclusion that there had <\/p>\n
    occurred a remission or cessation of liability during the Assessment <\/p>\n
    Years in question.\n<\/p>\n
    13.         For the aforesaid reasons, the appeals filed by the assessee <\/p>\n
    are allowed and the question of law as framed is answered in favour <\/p>\n
    of the assessee and against the Revenue.  In the view which we have <\/p>\n
    taken it is not necessary for the Court  to enquire into the correctness <\/p>\n
    of the order passed by the Tribunal on the application under Section <\/p>\n
    254.  Both the petitions shall accordingly stand disposed of.\n<\/p>\n
                In the circumstances of the case, there shall be no order as <\/p>\n
    to costs.\n<\/p>\n
                                                (Dr. D.Y.Chandrachud, J.)<\/p>\n
                                                    (J.P. Devadhar, J.)<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 15:59:52 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court M\/S. Si Group India Ltd vs The Asst. Commissioner Of on 10 June, 2010 Bench: Dr. D.Y. Chandrachud, J.P. Devadhar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. INCOME TAX APPEAL NO.1511 OF 2009 WITH INCOME TAX APPEAL NO.1512 OF 2009 M\/s. SI Group India Ltd. ..Appellant. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-163836","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nM\/S. Si Group India Ltd vs The Asst. Commissioner Of on 10 June, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-si-group-india-ltd-vs-the-asst-commissioner-of-on-10-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S. Si Group India Ltd vs The Asst. 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