TMI Blog2005 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ts taxable income - It is the case of the petitioner that, some time in 2000-01, FICC discovered an error in the computation of retention price right from 1982 and, therefore, decided to recover the excess subsidy, which according to FICC was paid to the petitioner - petitioner would be entitled to make claim of the amount which it is called upon to refund as and when it actually makes the payment and considering the statement made on behalf of the respondents, the petitioner shall be entitled to claim deduction qua such payment from its taxable income in the year in which such payment is actually made – petition allowed - - - - - Dated:- 1-2-2005 - Judge(s) : D. A. MEHTA., Ms. H. N. DEVANI. JUDGMENT The judgment of the court was de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the figures applicable to each of the years under consideration. According to the petitioner, for the period, financial years 1982 to 2001-02, the petitioner was called upon to refund subsidy to the extent of Rs. 375.99 crores and, hence, the petitioner moved the Central Board of Direct Taxes requesting for directions to respondent No. 1: (1) to condone the delay in preferring application under section 264 of the Income-tax Act, 1961 ("the Act"); and (2) revise the assessments of the aforesaid years by granting necessary relief by reducing the income proportionately to the extent of withdrawal of subsidy year-wise. It appears that correspondence ensued between the parties, but ultimately, on November 5, 2003, the Secretary to the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1983-84 to 1998-99 downward revising the assessed income by the subsidy later withdrawn. (D) this hon'ble court be pleased to award costs of this petition to the petitioner." Heard Mr. J.P. Shah, the learned advocate for the petitioner and Mr. D.D. Vyas, learned standing counsel for the respondent-Revenue. The case of the petitioner, in support of its plea for condonation of delay, is that the recovery of subsidy has been initiated and effected by various orders commencing from December 2, 1998, and spreading over a period of three years. So far as the aspect of condonation of delay is concerned, it is apparent that the petitioner cannot be non-suited on that ground taking into consideration the fact that whether the petitioner was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was on the aforestated facts assessed on excess income for the years under consideration and once the petitioner had been able to show that it was not entitled to subsidy in the light of the subsequent orders of FICC, the assessments wherein the said portion of subsidy was treated as income and had been taxed was required to be revised by granting appropriate relief to the petitioner in each of the years under consideration. In the alternative, it was submitted that the Revenue should not be permitted to deny the legitimate claim of the petitioner by refusing deduction of the amount which the petitioner would be called upon to pay in subsequent years, namely subsequent to the order dated December 5, 2001, whereby the petitioner is require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment, the amount be refunded to the Government by due date." In the light of the aforesaid communication, the petitioner would be entitled to make claim of the amount which it is called upon to refund as and when it actually makes the payment and considering the statement made on behalf of the respondents, the petitioner shall be entitled to claim deduction qua such payment from its taxable income in the year in which such payment is actually made. Accordingly, respondent No. 1 is directed to modify the later portion of his impugned order where under he has rejected the claim of the petitioner-company on both the counts, despite holding that "At best, the assessee-company can claim deduction for the amount actually refunded in any la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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