TMI Blog1997 (3) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... despite the Central Act 28 of 1969 and Madras Act 3 of 1969 there was a remission or cessation of liability under section 41(1) of the Income-tax Act, 1961?" The assessee is a private limited company carrying on business in manufacturing safety matches. The assessment year involved in this tax case is 1972-73 for which the relevant previous year ended on March 31, 1972. In respect of sales effected by the assessee during the accounting years, relevant to the assessment years 1957-58 to 1965-66, the assessee paid Rs. 1,37,041 by way of Central sales tax. The Income-tax Officer gave deduction for this amount in the assessment for the relevant assessment years. The assessee had filed a writ petition before this court challenging the validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to produce a receipt showing repayment. The Tribunal held that all the conditions of section 41(1) of the Act were satisfied and the refunded amount was taxable for the assessment year 1972-73. The Tribunal also negatived the contention of the Department that the assessee was entitled to the refund on the date the High Court delivered its judgment, invalidating the sales tax levy, i.e., on January 31, 1968, and so the amount of Rs. 1,37,041 was assessable for the assessment year 1968-69. The Tribunal directed that hence the protective assessment for the assessment year 1968-69 should be cancelled. Before us, learned counsel appearing for the assessee submitted that as against the Ordinance, validating the levy, the assessee went on app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 982. In the said appeal, the Supreme Court upheld the Ordinance and dismissed the appeal filed by the assessee. The judgment is dated April 16, 1996 (Comorin Match Industries (Pvt.) Ltd. v. State of Tamil Nadu [1996] 102 STC 1). A similar question came up for consideration before this court in T. C. Nos. 291 to 293 of 1976 in the case of CIT v. Mohideen Match Works. According to the facts arising in that case, the assessee filed writ petitions for issue of a writ of mandamus to refund the tax collected from the assessee. The refund was ordered. The Department contended that the amounts refunded will be liable to be taxed under section 41(1) of the Act. In the meanwhile by the Central Act 28 of 1969, the levy was validated, as against whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rading receipt in the hands of the assessee. A combined reading of the decisions cited supra would go to show that refund of sales tax in the hands of the assessee herein is liable to be paid back on account of the subsequent Ordinance passed by the Government, validating the levy of sales tax, especially when the assessee lost its case before the Supreme Court. Inasmuch as still the liability is existing for payment of sales tax, section 41(1) of the Act cannot be made applicable to the facts of this case. Therefore, the Tribunal was not correct in coming to the conclusion that the sales tax refund in the hands of the assessee is taxable under section 41(1) of the Income-tax Act, 1961. Accordingly, we answer the question referred to us i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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