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TMI Blog2000 (11) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... law by not accepting the written arguments and authorities produced before them and the copies of the same are enclosed along with this memo of appeal for your consideration." 2. We have heard the authorised representatives of the parties, perused the records and carefully gone through the orders of the lower authorities. 3. The gist of grounds of appeal of the assessee is based on the findings required to be given by this Bench i.e., whether the AO was justified in disallowing a sum of Rs. 1,21,200 under s. 43B of the IT Act. 4. The relevant and material facts for the disposal of these grounds of appeal and the issue involved therein are that the assessee for the asst. yr. 1989-90, filed the return declaring an income of Rs. 13,569. Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee had filed writ petition before the Hon'ble High Court of J&K at Jammu in this matter and the Hon'ble High Court had vide its interim order dt. 26th Feb., 1991, was pleased to direct not to make assessment till date of next hearing only. The AO further observed that from the perusal of records, it is seen that lateron vide their judgment dt. 5th Sept., 1991, the Hon'ble High Court was further pleased to dismiss assessee's writ petition as well as interim direction issued on 26th Feb., 1991, which also stands vacated. Further, according to the AO, during the course of assessment proceedings, this was confirmed by the assessee's counsel, Shri Rajinder Kumar Sharma, Advocate. Thereafter, the AO was of the opinion that since the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in the case of ITO vs. Pravra Sahkari Sakher Karkhana Ltd. (1990) 81 CTR (Trib) (Pune) 271. Alternatively, it is claimed that only the amount collected during the year should have been disallowed. 8. The learned CIT(A) after considering the arguments advanced by the assessee's counsel gave the following directions to the AO in his order: "I hold that the AO is justified in invoking the provisions of s. 43B of the Act in respect of unpaid amount of the premium collected by the appellant. But, at the same time, such provisions shall apply only in respect of current year's premium and not for the balance. I have seen the ledger account and find that there was opening balance of Rs. 32,800 as on 1st April, 1988. The AO is accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding in the assessment order. The premium collected is exactly at par with sales-tax and whether such amount is credited to P&L a/c or directly to balance sheet is immaterial because such amount under both the circumstances is part of trading receipt. If such payment has not been made during the year the appellant is hit by the provisions of s. 43B of the Act and no hardship is caused to her either because necessary deductions will be available in the year of actual payment, if the payment ultimately has to pay such amount to Government. Although it is not very material, it should also be noted that the Hon'ble High Court has given no directions that such premium collected is not to be paid because the only direction is not to use coerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see presently cannot be called in dispute as no such petition challenging this premium is pending before the J&K High Court. So, firstly, the cases cited by the lower authorities are no longer applicable to the facts of the case in hand as the amount in question, is no longer in dispute and secondly those citations are not relevant to the case in hand as these deals with cases regarding applicability of s. 43B of the IT Act, prior to its amendment i.e., asst. yr. 1988-89, whereas the case in hand relate to the asst. yr. 1989-90, which deals with the amended provisions of s. 43B, which became applicable for the asst. yr. 1989-90, and not prior to it. 12. Now the second point required to be decided by us is whether the amount of premium of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cl. (a) of s. 43B by whatever name called are simply referred to the words 'cess, tax, duty or fee' and so these words cannot be given wider meaning to cover up all sums collected by the assessee but not actually paid by him during the year under consideration, for the purpose of deduction. The dictionary meaning of the word 'premium' is a reward, a prize, excess over original price; anything offered as an incentive, which clearly indicates that the word 'premium' is neither a tax nor a duty nor cess nor fee and hence the amount of premium Rs. 1,21,200 collected by the assessee on behalf of the J&K Government but not actually paid during the year under consideration is not covered within the amended provisions of s. 43B, sub-cl. (a) effect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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