2004 (8) TMI 29

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..... Tribunal was right in law in holding that the refund of Rs. 2,14,131 was not taxable in the hands of the assessee for the assessment year 1978-79 under section 41(1) of the Income-tax Act, 1961?" The relevant facts are that during the accounting period April 1, 1977 to March 31, 1978, being the previous year for the assessment year 1978-79, the assessee received two sums of Rs. 1,89,571.73 and Rs. 24,559.53 (total Rs. 2,14,131) by way of refund of Central excise duty paid by the assessee earlier and allowed as expenditure in determining its income for the earlier years. The said refund was granted by the Assistant Collector, Central Excise, Patiala, on May 7, 1977, which date, admittedly, fell within the accounting period relevant to the a .....

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..... xcise duty had not finally ceased. The relevant findings of the Tribunal are contained in para. 8 of the order, as under: "8. When above are the uncontroverted facts we look to section 41(1) which reads as under: '41.(1) Where an allowance or deduction has been made in the assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee, and subsequently during any previous year the assessee has obtained, whether in cash or in any other manner whatsoever, any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof, the amount obtained by him or the value of benefit accruing to him, shall be deemed to be profits and gain .....

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..... e do not find that the trade liability regarding payment of excise duty resulted into a cessation. Though the assessee got a refund it was immediately followed by a show-cause notice in consequence of the audit." The facts are not in dispute. It is evident that in view of the show-cause notice issued by the Assistant Collector dated November 23,1977, the issue of refund to the assessee itself was in dispute and, therefore, it could not be said that there was a final cessation of liability which is a necessary prerequisite for invoking the provisions under section 41(1) of the Act. This view finds support from the law laid down by the apex court in Chief CIT v. Kesaria Tea Co. Ltd. [2002] 254 ITR 434. Accordingly, we answer the question in .....

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