TMI Blog1994 (1) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... rs are not disallowable under section 37(3A) of the Income tax Act, 1961 ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the order of the Commissioner of Income-tax (Appeals) to the effect that the unpaid amounts under the Cement (Control) Order, 1967, of Rs. 18,37,851 and under the Water (Prevention and Control of Pollution) Cess Act, 1977, of Rs. 2,87,245 were not hit by the provisions of section 43B of the Income-tax Act, 1961 ? " This reference relates to the income-tax assessment of the assessee company for the assessment year 1984-85. The first question is directly covered by the decision of this court in CIT v. Tungabhadra Industries Ltd. [1994] 207 ITR 553, in which the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenues of any Government or local authority and was contributed specifically for being utilised for the benefit of producers of cement in the manner laid down in the said order. The Commissioner of Income-tax (Appeals), therefore, held that the provisions of section 43B had no application to the amount payable under the Cement Control Order, 1967, since the same was neither tax nor duty. This view of the Commissioner was later upheld by the Tribunal. We have looked into the Cement (Control) Order, 1967, and we find that the Commissioner of Income-tax (Appeals) correctly analysed the provisions of the said order. The amount payable by a manufacturer under the said order did not partake of the character of tax or duty and, therefore, the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered to be tax or duty within the meaning of section 43B of the said Act. The Tribunal affirmed the view of the Commissioner of Income-tax (Appeals). We find that clause (a) of section 43B of the said Act has since been amended by the Finance Act, 1988. As a result of the amendment, section 43B is now applicable not only to tax and duty but also to cess or fee, by whatever name called, payable under any law for the time being in force. This amendment, in our view, is clarificatory in nature and, therefore, has retrospective operation. We have already held in CIT v. Bengal Tea and Industries Ltd. (Income-tax Reference No. 83 of 1992), judgment wherein was delivered on October 4, 1993, that section 43B also applied to cess even in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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