TMI Blog1993 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved by the above direction the assessee filed appeals before the Tribunal. 3. The case of the assessee before the Tribunal was that the assessee keeps a separate sales-tax account in which the sales-tax collected from the parties was credited and the sales-tax paid to the Government was debited and the balance amount was taken directly to the balance sheet and not to the profit and loss account. The amount so carried to the balance sheet, appearing as liability pertains to the last quarter of assessment years and as per the Sales-tax Act, the said amount becomes payable to the Government only after 40 days and the amount has been paid before 40 days. As such the assessee has discharged its liability before the due date for filing of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rejected. The reasons for taking such a view are stated in the following paras. 7. The original provisos introduced in s. 43B by the Finance Act, 1987: "Provided that nothing contained in this section shall apply in relation to any sum referred to in cl. (a) which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-s. (1) of s. 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return: Provided further that no deduction shall in respect of any sum referred to in cl. (b) be allowed unless such sum has actually been paid during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king for the previous year relevant to assessment year for which deduction is claimed have been audited by an accountant as defined in the Explanation below sub-s. (2) of s. 288 and the assessee furnishes along with his return of income the report of such audit in the prescribed form, duly signed and verified by such accountant. 10. While dealing with the registration of the firm, the Act stipulates vide proviso (ii) of sub-s. 7 of s. 184 (as it was then) that the firm furnished before the expiry of the time allowed under sub-s. (1) of s. 139 for furnishing the return of income for such subsequent assessment year, a declaration to that effect in the prescribed form and verified in the prescribed manner, etc. etc. 11. Sec. 271B which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the prescribed form verified in the prescribed manner. In that case the issue before the High Court was whether the registration to a firm could be denied on the ground that a declaration in Form 12 was not filed along with the return. In this case it was held by the Hon'ble High Court— "The requirement that a firm shall furnish a declaration in Form No. 12 is merely to prove the facts in a particular way. The requirement that the declaration shall be filed along with the return of income is a procedural requirement. The legislative intent appears to be that while dealing with the assessment of a firm, the ITO should have clear cut evidence that the essential fact that there has been no change in the constitution of the firm or in the sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso to the decision of the Hon'ble Supreme Court in the case of Lakshmiratan Engineering Works Ltd. vs. Asstt. Commr., (Judicial) 1, Sales-tax (1968) 21 STC 154 (SC). In this case the Hon'ble Supreme Court had occasion to consider the r. 66 of U.P. Sales-tax Rules, 1948 which require that the memorandum of appeal should be accompanied by challan showing the deposits in the Treasury of tax admitted. While dealing with the question whether it is mandatory to produce the challan, the Hon'ble Supreme Court held that the Court will accept satisfactory proof other than challan. This rule is directory and provides only one of the modes of proving the tax has duly been paid. If the challan was lost the dealer should produce a copy of challan from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y', the assessee would be denied the benefit of s. 80J. Further the Hon'ble High Court held that this would result in absurdity. It is to be kept in view that by mere non-filing or auditors' report along with the return of income the assessee does not stand to gain anything nor does the Revenue stands to lose as even if the return is filed, it is obvious that it may take time before the ITO applies his mind to the merit of the return, when he sits down to frame the assessment. 15. Now coming to the case before us the same is the situation. The assessee by not filing the proof does not get anything nor the Department loses anything. At the assessment stage the ITO has all the powers to call for any record, documents, etc., to satisfy hims ..... X X X X Extracts X X X X X X X X Extracts X X X X
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