TMI Blog1980 (9) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year in question is 1970-71, for which the accounting period ended on November 9, 1969. The assessee had imported tobacco from outside the State of Madhya Pradesh and sold the same within the State between S.Y. 2007-8 to 2014-15, relevant to the A.Ys. 1952-53 to 1959-60. The assessee had collected sales tax from its constituents on the sales of tobacco and paid the same to the State Govt. The total amount so paid during these years was Rs. 76,578. Later, the assessee brought suit against the State Govt. claiming refund of this amount on the ground that the recovery was illegal and unconstitutional. The claim was decreed by the High Court of Madhya Pradesh during the previous year relevant to the assessment year 1970-71 and the State a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal, the department reiterated its contention that the assessee had claimed and was allowed deduction of sales tax during the assessment years 1952-53 to 1958-59, and the AAC had erred in holding that, in fact, no such deduction was claimed and allowed during those years. The prayer on behalf of the department before the Appellate Tribunal was that: " The matter should be sent back to the AAC for making proper verification." The Appellate Tribunal observed as follows : " The question involved in this appeal is purely a factual one about the verification of facts by the AAC." After posing this question and after examining the documents filed before the AAC by the assessee, the Tribunal observed: " This clearly shows that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt's order under s. 256(2) of the Act in Miscellaneous Civil Case No. 465 of 1976 (CIT v. Nathuabhai Desabhai): " It was contended by the learned counsel for the petitioner (i.e., the Commissioner of Income-tax) that on these as to whether section 41(1) of the Act would be applicable ...... Admittedly, the learned Members of the Tribunal also held that as no deduction was sought specifically in the years 1953-54 to 1958-59, section 41 of the Act will not be applicable. The order, therefore, clearly indicates that the learned Members of the Tribunal accepted the findings of fact arrived at by the Appellate Assistant Commissioner. The only question which remained to be considered was as to whether section 41(1) of the Act could be appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 been made is in existence in that year or not. " The condition prescribed for charging profits to tax under s. 41 (1) of the Act is: " Where an allowance or deduction has been made in the assessment for any year in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the question cannot be altered nor the court can embark on other provisions of the I.T. Act to justify chargeability or otherwise of a particular item of income. It is imperative that the question itself arises out of the Tribunal's order. This is possible only if all the necessary facts on which the order is based have been placed before the Tribunal. If those facts are not present, the Tribunal naturally cannot refer to them and in such a case no question outside the perimeter of the case as presented before the Tribunal can be enquired into. If Shri Bagadiya's contention is accepted, we will have to enquire not only about the taxability of this receipt, but also about the year or years in which various amounts paid in numerous instal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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