TMI Blog1985 (11) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Officer to prove that the refund obtained by the assessee had been allowed as a deduction in the earlier years ? 2. If the answer to the above question is in the negative, whether, on the facts and in the circumstances of the case, the Income-tax Officer has not discharged the onus of proof ? 3. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is justified in interfering with the order of the Appellate Assistant Commissioner who only directed the Income-tax Officer to examine the assessee's claim and to tax only those amounts which have been debited in the accounts in the earlier years ? " The Revenue is before us. The year of assessment is 1972-73 corresponding to the accounting perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otalling to Rs. 52,570 related to the assessment years 1952-53 to 1959-60 and represented that, as finally, this amount was decided not payable, the entire sum should be refunded. But as the assessee could produce evidence, viz., challan receipts, etc., for payment of Rs. 51,400 only, the actual amount refunded to the assessee is only Rs. 51,400. From these details, it is evident that the assessee had made payments to the extent of Rs. 51,400 during these years. It may be that only Rs. 27,838, as claimed by the assessee, must have been debited to the licence fee account ...... Admittedly, the assessee had paid Rs. 51,400 during these years and after having claimed and obtained the same from the Excise Department, the assessee could have pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be able to examine this question and the Income-tax Officer is directed to bring to tax only such amounts as is found to have been debited in the accounts for the payment of the licence fees which have been refunded to the appellants by the Excise Department." (annexure-F). The Appellate Tribunal who heard the second appeal, which the assessee had filed against the order of the Appellate Assistant Commissioner (annexure-F), held as follows: " The assessee having made it clear that the character of the amount is only refund of licence fees, unless all the conditions of section 41(1) are satisfied, it cannot be taxed. The Income-tax Officer has to prove that the claim for deduction had been allowed in the earlier years. For this pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 41(1) reads: " 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 gains of business or profession and accordingly chargeable to income-tax as the income of that previous year, whether the business or profession in respect of which the allowance or deduction has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular assessment. The allowance or deduction made in the assessment for any year can be ascertained from the order of assessment of that year. If that be so, the Revenue is not justified in directing the assessee to produce the accounts and other documents relating to the years in which he had been allowed the " Luxury tax collected in the form of a fee for licence for the vending and stocking of tobacco " as an item of expenditure which, subsequently, was refunded by the Excise Department in the previous year. For the reasons stated above, we are of the view that the assessing authority was not justified in rejecting the plea of the assessee that out of Rs. 51,400 refunded to it by the Excise Department, only Rs. 27,838 is liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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