TMI Blog1992 (5) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the learned counsel, it would not be just and reasonable to refuse to dispose of the miscellaneous petition without the clearance from the Screening Committee. Dr. Narayanan pleaded that the dispute has already been decided by the Tribunal. Assessee is only seeking rectification of mistake in the order which has come into existence before the decision of the Supreme Court in the case of ONGC. The disposal of miscellaneous petition according to Dr. Narayanan would not amount to disposal of a fresh dispute between the Government Department and the public sector undertaking. It was accordingly pleaded that the application may be disposed of on merits. 3. On careful consideration of rival contentions, we are inclined to agree with the contention raised on behalf of the assessee that the appeal of the assessee having been disposed of before the decision of the Supreme Court in ONGC it would be necessary for this Bench to dispose of the application under s. 254(2) which does not in any manner raise a fresh dispute between the Revenue Department and the public sector undertaking. The dispute having been already decided and the proceedings under s. 254(2) being confined to rect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own subsidy received/receivable from the Government and has also claimed that the assessee corporation has earned profit for the last 10 years. The addition of Rs. 8,64,50,709 was accordingly made by invoking s. 43B. 5. The CIT(A) deleted part of the addition to the tune of Rs. 446.16 lakhs which related to the collections made in the earlier years but sustained the addition of Rs. 418.35 lakhs. The learned CIT(A) rejected the contention on behalf of the assessee that its activities should be bifurcated in two parts, one relating to trading activities and the other without any profit-motive activity. The learned CIT(A) observed that assessee had been following the same method of accounting since its inception. The results of the total activities were reflected in the profit and loss account and accordingly it was not possible to accept the assessee's plea that the activities should be considered in two parts one relating to procurement and distribution of foodgrains as Central Government agent and other relating to savings on incidental and handling charges recovered from State Government. The CIT(A) referred to two decisions of the Supreme Court in the case of Chowringhee Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in any case that decision being subsequent to the decision of this Bench, it will have no bearing upon the fate of the application under s. 254(2). It was accordingly urged that the application may be dismissed. 10. We have given our careful consideration to the rival contentions. We have narrated the facts of this case above and need not repeat the same. The issue before the Tribunal was two-fold. Firstly, as to whether the amount collected by the assessee as Central sales tax, general sales tax and other duties would form part of the taxable receipts of the assessee and secondly, if so, whether provisions of s. 43B would be applicable. This Bench, on consideration of rival contentions, by reference to the provisions of Food Corporation Act of 1964, held that the Corporation having been established for the purposes of trading in foodgrains and other foodstuffs and the matters connected therewith and incidental thereto, the entire receipts collected by the assessee including the receipts on account of State sales tax, Central sales tax etc. would form its taxable receipt. The decision of the P H High Court in the case of the assessee and other related cases were not referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said to be a dealer under the Haryana General Sales Tax Act (20 of 1973) and whether the Corporation was liable to sales tax under the said Act. Considering that there was no freedom of contract or element of mutual assent in the transactions on account of purchase of rice and supply to deficit State, the Hon'ble High Court held that the purchases by FCI were not sales and accordingly not exigible to sales tax. In the process of arriving at the decision the Hon'ble High Court held that FCI was not a dealer in the legal sense of the term. In our view, the basic issue before us is about the nature of receipts collected by the assessee on account of sales tax etc. whereas the issue before the Hon'ble High Court was as to whether assessee was a dealer for purposes of sales-tax and whether it was liable to sales tax. Though the two issues may seem to be interlinked yet they are not so in scope and context. The decision arrived at by the Hon'ble High Court does not support the proposition that the receipts collected by the assessee are not revenue receipts and accordingly not liable to be taken into account in determination of assessable income of the Corporation. The issue as to wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of sales tax made by the assessee do not pertain to the supplies made to the State Governments at concessional rates. Considerable supplies have been made by the assessee to the roller flour mills, the nature of which has not been gone into by the High Court of Punjab and Haryana. Assessee continues to be a registered dealer under the sales tax statutes and collections have been made in the capacity of a registered dealer. In respect of sales tax collections on account of transactions other than supplies to State Governments at concessional rates, the decision of thePunjaband Haryana High Court in assessee's own case in any case is inapplicable. 14.4 We, therefore, reiterate that the receipt of Rs. 418.35 lakhs on account of excess sales tax collections constitute revenue receipts of the assessee and deduction would be permissible in respect of corresponding liability in the year of payment." 12. We may now refer to the decision of 'C' Bench of the Tribunal in assessee's own case for asst. yr. 1984-85 in ITA No. 6418/Del/88 decided on31st Jan., 1992. We would have preferred to refrain from commenting upon the decision. But since it has been relied before us in suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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