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2015 (9) TMI 1054 - HC - Income TaxDuty paid by the assessee in advance under protest - whether Tribunal was right in holding that the duty paid by the assessee in advance under protest by treating the payment as loan and advance in the balance sheet without debiting the payment in the profit and loss account is allowable as a deduction under Sections 37 and 43B ? - Held that:- As rightly pointed out by the Tribunal the assessee has actually paid the said amount as excise duty in the relevant previous year for enabling them to move the goods out of their factory. This payment was made pursuant to an order passed by this Court. The fact that the assessee has taken up the matter on appeal to the Supreme Court on their litigation with the Department of Central Excise, would not make the payment a non payment. The heading, under which, the assessee has incurred expenditure is only a duty payment. Therefore, the Tribunal was right in holding that the assessee satisfied both the statutory provisions of Sections 37 and 43B. What the Assessing Officer has recorded is that no order or demand of excise duty served upon the assessee was produced. But, the Assessing Officer has recorded the fact that even in the order of the High Court, it was mentioned that the goods moved out of the factory after payment. The point that was raised by the Assessing Officer was that there was no demand on the part of the Department. The crystallization of demand may not really be a ground to suspect the actual payment. In any case, it is a question of fact. Hence, we are of the considered view that the question of law raised by the Department does not arise for consideration. - Decided against revenue.
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