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2013 (7) TMI 662 - DELHI HIGH COURTAdditional cess and cess surcharge - Tax u/s 43B - CIT made disallowance u/s 43B holding that cess and cess surcharge is tax u/s 43B - Tribunal deleted disallowance - Held that:- Finance Bill, 1988 provides that cess or fee by whatever name called, which have been imposed by any statutory authority including a local authority, would also be allowed as a deduction only if they were actually paid - There was really no generic difference between a tax and a fee inasmuch as both are compulsory exactions of money by public authority - Tax recovered by a public authority invariably goes into the consolidated fund which is ultimately utilized for all public purposes whereas a cess levied by way of a fee is not intended to be and does not become a part of the consolidated fund - claim of expenditure on the basis of accrued liability to pay cess and cess surcharge under the Tamil Nadu Panchayats Act, 1958 could not be disallowed by the revenue authorities by invoking Section 43B as it was applicable to the assessment year 1985-86 - Decided in favour of assessee. Dialoowance u/s 43B - Deposits from non governmental buyers - CIT held deposit as trading receipts and made disallowance u/s 43B - Tribunal deleted disallowance - Held that:- Where an amount is received merely by way of deposit, on the express understanding or undertaking as in these cases, the company held the money as a mere custodian, and on the fulfilment of the condition became a trustee for the depositor. It is sufficient to state that when once the tax authorities determined that the proceeds of the sales in question were not within the taxable turnover of the company, the beneficial ownership became vested in the depositors and the company ceased to have any right to continue to hold the moneys - Following decision of The State of Mysore and Another Versus Mysore Spinning and Manufacturing Co., Ltd. and Another [1960 (9) TMI 59 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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