TMI Blog1999 (11) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Rs. 3,02,758 sustained by the Commissioner of Income-tax (Appeals)?" The factual position as set out in the statement of case is as follows: The assessee, a company in which public are not substantially interested, is engaged in the business of exporting tea, pepper and other spices. For the assessment year 1985-86 corresponding to the previous year ending March 31, 1985, the assessee wrote back in its account a sum of Rs. 14,65,997 representing provision for purchase tax of earlier years, i.e., 1978-79 to 1980-81. A sum of Rs. 6,61,413 w as brought to tax in reassessment for the assessment year 1980-81 by disallowing provision made in the accounts. In assessment for the assessment year under consideration, i.e., 1985-86, the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, the entire sum of Rs. 14,65,997 could be brought to tax. The matter was carried in appeal before the Tribunal. The Tribunal noticed that the reassessment made for the assessment years 1980-81 and 1981-82 had been held to be bad in law and further it was held that the provision for purchase tax liability could not be allowed, as sales tax assessments were pending for those years. So far as the finding of the first appellate authority that in view of a decision of the apex court in Neroth Oil Mills' case [1992] 49 STC 249, there was cessation of liability during the year ending on March 31, 1985, the Tribunal noticed that for claiming exemption from payment of Central sales tax in terms of the Central Sales Tax Act, 1956 (in short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed finality and this aspect was lost sight of by the Tribunal. Learned counsel for the assessee submitted that the order passed by the Tribunal for earlier assessment years 1980-81 and 1981-82 and hearing notices issued by the sales tax authorities clearly indicate that the matter had not attained finality. The Tribunal had in the earlier orders held that the reassessments were bad and further held that the provision for purchase tax liability cannot be disallowed as sales tax assessments were pending. Reference applications were also rejected. Petitions filed by the Revenue against the order of the Tribunal striking down reassessment orders for the previous two assessment years, i.e., 1980-81 and 1981-82, and also striking down disallowanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made in respect of any loss, expenditure or trading liability incurred by him and (ii)(a) any amount is obtained in respect of such loss or expenditure ; or (ii)(b) any benefit is obtained in respect of such trading liability by way of remission or cessation thereof ; (iii) such amount or benefit is obtained by the assessee ; and (iv) such amount or benefit is obtained in a subsequent year. Where the provisions of section 41(1) are attracted, the sub-section enacts two fictions whereunder--- (a) the amount obtained by the assessee or the value of benefit accruing to him is deemed to be profits and gains of business or profession which otherwise would not be income, and (b) such amount or value of benefit is made chargeable to incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any future time. If there is any such possibility, then cessation is not complete and section 41(1) is not attracted. Under all sales tax laws, the moment a dealer makes a sale or purchase where the statute makes purchase taxable in the hands of the purchaser, an obligation to pay tax arises and taxability is attracted. Sales tax is a compulsory levy under the sanction of the Legislature and there is no discretion left to the assessee as regards the extent of payment. The direct purpose for which money is laid out is not the benefit of business, and payment goes for the benefit of the State. It is payable irrespective of any profit being earned. But without such payment, the business of buying and selling cannot be carried on. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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