TMI Blog1991 (2) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that the principles laid down by the Supreme Court in the case of Indian Molasses Co. Pvt. Ltd. [1959] 37 ITR 66 are not applicable to this case and the case is covered by the principles laid down in Kedarnath Jute Mfg. Co. Ltd. [1971] 82 ITR 363 (SC) by ignoring the material fact that excise duty in this case is neither determined nor owed as a debt by the assessee but is merely a contingent liability not provided for in the books of account ? It appears that carbon paper was subjected to excise duty under item No. 68. An amendment was brought about in item No. 17 by the Finance Act of 1976 whereby coated paper was regarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that only a show cause notice had been issued. In respect of the year 1981-82, with which the present petition is concerned, it was observed by the Income-tax Officer that as the assessee maintains the mercantile system of accounting, the claim for earlier years is normally inadmissible this year. He further held that, in the instant case, the liability had arisen this year and the same would have been allowed if the said liability was in present and not in future. The reason for so holding was that "the liability which the assessee has claimed this year, in view of the pending writ is, for the time being, only contingent". The Income-tax Officer referred to the decision of the Supreme Court in the cases of CIT v. Indian Mola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Department arises because of the classification of carbon paper. Earlier, excise duty had been paid under item No. 68 but the claim of the excise authorities raised for the first time in 1979 was under item No. 17. Mohan Meakin Breweries' case [1989] 175 ITR 78 (Delhi) is, therefore, clearly distinguishable and has no application to the present case because the allowability of this item is not in dispute. Even the assessing authority had said that the excise duty claimed by the Excise Department is allowable as a deduction. But in Mohan Meakin's case [1989] 175 ITR 78 (Delhi) it was doubtful whether the item was allowable as a deduction or not. In this case, the only dispute is whether it is allowable for the assessment year 1981-82 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gree with counsel for the petitioner that any such objection was raised by the Inspecting Assistant Commissioner. This is evident from the fact that the Inspecting Assistant Commissioner himself stated that this liability would have been allowed as a deduction in this year if the writ petition had not been filed. We are also unable to agree with learned counsel for the petitioner that this point was ever raised or considered by the Tribunal. It is contended that the Tribunal has stated that the ground of the petitioner is that the Commissioner of Income-tax (Appeals) had erred in allowing the excise duty liability of Rs. 92,98,805 pertaining to the assessment year prior to the assessment year 1981-82. From this, it is sought to be contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of this deduction in the earlier years. Even the questions which have been framed do not pertain to this. It is true that this court can reframe a question of law but a question of law cannot be so reframed as to make it a completely new question which has not been sought to be referred or which does not arise from the order of the Tribunal. The contention now sought to be raised by Mr. Gupta, that the deduction was allowable only in the earlier years does not, in our view, arise from the Tribunal's order. In our opinion, there is no merit in this petition because the questions of law proposed are academic and the answer to the same is self-evident in view of the decision of the Supreme Court in the case of Kedarnath Jute Mfg. Co. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
