TMI Blog2009 (1) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Mr. Shivanand Singbal, Advocate for respondent No.1. JUDGMENT The judgment of the court was delivered by P.B. MAJMUDAR, J. - This appeal is directed against the Order dated 19.10.2001 passed by the Income Tax Appellate Tribunal, (ITAT) Panaji Bench, in Income Tax Appeal No.904/PN/92 in connection with the Assessment year 1989-90. By the impugned order, the ITAT dismissed the appeal filed by the appellant and confirmed the order passed by the Commissioner of Income-Tax (Appeals) (CIT(A)). This appeal is admitted on the following substantial questions of law : (A) Whether on facts and in the circumstances of the case, the ITAT was justified in law in deleting the additions in respect of Sales Tax refund to the extent of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , particularly, on the ground that the mater was subjudice. The aforesaid order was challenged by the appellant-Department by way of an appeal before the ITAT. The ITAT, after considering the decision given by it in another case, held that since the litigation has not reached finality, the sales tax refund should not be assessed as income till the litigation reaches finality. By holding so, the ITAT dismissed the appeal, which decision is impugned in this appeal. 4. The learned Counsel Shri Rivonkar for the appellant submitted that both the ITAT as well as CIT(A) have committed substantial error of law in holding that till the matter reaches finality in connection with the refund of amount, the amount, in question, cannot be added in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount cannot be taken into consideration while computing the total income of the assessee for the relevant assessment year ? In this connection, the observations made by the Apex Court in Polyflex (India) Pvt. Ltd. (supra) are required to be considered. So far as the aforesaid case is concerned, the same was in connection with the excise duty refund. In the aforesaid case, excise duty was refunded to the assessee pursuant to the decision of the CEGAT. The same is not a relevant factor as the case would fall under the clause depending upon any action in respect of such expenditure. While considering the said question, the Supreme Court has observed thus : " We are inclined to think that in a case where a statutory levy in respect of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ultimately, even if such an appeal preferred by the assessee is allowed by the appellate Authority, the assessee will not be without any remedy by way of getting an appropriate relief. In view of the same, the ITAT has committed an error of law in deciding the issue in question on the ground that the question of refund is subjudice and till it reaches finality, the said issue cannot be decided. We, therefore, do not agree with the view taken by the ITAT that unless the issue about refund is finally determined, the income received by the assessee cannot be considered in the total income of the assessee. Once an order is already passed in favour of the assessee for refund of the amount, we see no reason why the same should not have been tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not considered the merits of the case, as according to the respondent, the amount could not have been added in the income of the assessee. It is true that the ITAT, in a cryptic manner, rejected the appeal of the Department stating that the question of refund is subjudice and it has not achieved finality. The Tribunal has not decided whether on merits such addition was justified or not. Since on merits, the issue has not been examined, we are inclined to remit the matter to the ITAT to decide the question on merits as to whether such addition is justified or not. It is clarified that we have not examined merits as to such addition was justified or not and that question is kept open for consideration of the ITAT and the Tribunal may deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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