- Kedar Nath Jute Mfg Co. Ltd 82 ITR 363 (SC)
- Commissioner of Income-tax v. Royal Boot House [1970] 75 ITR 507 (Cal.)
- Pope The King Match Factory v. Commissioner of Income-tax [1963] 50 ITR 495 (Mad.)
- Kalinga Tubes 169 ITR 374 (SC)
- Standard Mills Co. Ltd [1998] 100 TAXMAN 535 (BOM.) [21-03-1997]
- Bombay High Court in Ballarpur Industries Ltd [2017] 84 taxmann.com 295 (Bombay)
If there is a debt, the fact that the amount is to be ascertained does not make it any less a debt if the liability is certain and what remains is only quantification [Kedar Nath Jute Mfg Co. Ltd 82 ITR 363 (SC).
In this case sales tax officer imposed tax on assesse during assesse which assesse negated and challenged in appeal. Held by Supreme Court that Under all sales tax laws the moment a dealer makes either purchases or sales which are subject to taxation, the obligation to pay the tax arises and taxability is attracted. Although liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment. In the interest case, the liability had even been quantified and a demand had been created by means of the notice during the pendency of the assessment proceedings before the ITO and before the finalisation of the assessment. It was not possible to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not prevail with regard to the quantum of liability, etc. An assessee who follows the mercantile system of accounting is entitled to deduct from the profits and gains of the business such liability, which had accrued during the period for which the profits and gains were being computed. The liability o payment of sales tax had accrued during the year of assessment even though it had to be discharged at a future date.
Whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee might taken of its right nor can the existence or absence of entries in the books of account be decisive or conclusive in the matter. The assessee who was maintaining accounts on the mercantile system was fully justified in claiming deduction of the amount of sales tax which it was liable under the law to pay during the relevant accounting year. The liability remained intact even after the assessee had taken appeals to higher authorities or courts which failed.
In Commissioner of Income-tax v. Royal Boot House [1970] 75 ITR 507 (Cal.), it was held that where the assessee followed the mercantile system of accounting and, without disputing the liability to pay the sales tax, had made a provision for its payment in its account even though he had not actually paid the tax over to the authorities, the assessee was entitled to deduction in respect of the provision for sales tax from his income under section 10(2)(xv) of the Act. It was pointed out that under the provisions of the sales tax statutes, the liability to pay the tax was not dependent upon assessment or demand but was an obligation to pay the tax either annually, quarterly or monthly, as the case might be.
In Pope The King Match Factory v. Commissioner of Income-tax [1963] 50 ITR 495 (Mad.) , a demand for excise duty was served on the assessee and though he was objecting to it and seeking to get the order of the Collector of Excise reversed, he debited that amount in his accounts on the last day of his accounting year and claimed that amount as a deductible allowance on the ground that he was keeping his accounts on the mercantile basis. The Madras High Court had no difficulty in holding that the assessee had incurred an enforceable legal liability on and from the date on which he received the Collector’s demand for payment and that his endeavour to get out of that liability by preferring appeals could not in any way detract from or retard the efficacy of the liability which had been imposed upon him by the competent excise authority. In our judgment, the above decision lays down the law correctly.
Kalinga Tubes 169 ITR 374 (SC)
During the assessment year 1962-63, the assessee-company was liable to pay sales-tax under the Central Sales Tax Act, for which assessment was completed on 31-3-1966 and an additional demand was raised. The assessee disputing liability appealed against the order. The amount was reduced substantially, on second appeal, by the Sales-tax Tribunal’s decision dated 28-5-1970. On the basis of this order, the assessee claimed deduction of the said amount as business expenditure in respect of the assessment for the assessment year 1971-72, claiming that the sales tax liability was for that year.
Held by Supreme Court that It was squarely laid down in Kedarnath Jute Mfg. Co. Ltd.’s case (supra )that when the assessee is following the mercantile system of accounting, in case of sales tax payable by the assessee the liability to pay sales tax would accrue the moment the dealer made sales, which are subject to sales tax. At that stage the obligation to pay the taxes arises. Raising of dispute in this connection before the higher authorities would be irrelevant.
In the instant case, the liability to pay the Central sales tax arose or accrued on the basis of mercantile system of accounting followed by the assessee, during the assessment year 1962-63. It was a fact that the assessment for that year was completed by the STO on 31-3-1966. However, in mercantile system of accounting, liability to pay the quantified sales tax dues as per the order of the STO could be said to have accrued to the assessee for the assessment year 1962-63. It was true that the assessee challenged the same and ultimately got the liability reduced in second appeal. But that would not affect the accrual of liability to pay sales tax on the basis of mercantile system of accounting. If, ultimately, the tax liability was reduced and if in retrospect it was found that during the relevant assessment year the assessee had claimed a large amount of deduction by way of business expenditure, the difference of the amount wrongly claimed and allowed in earlier year could always be added back in the subsequent assessment year. It was obvious that in no case the assessee who was following mercantile system of accounting could have claimed deduction for payment of Central sales tax dues for assessment year 1962-63 in the assessment year 1971-72. It was difficult to appreciate how the High Court persuaded itself to come to the conclusion that because fresh demand notice was given by the STO pursuant to the decision of the Sales-tax Tribunal the amount covered by the demand notice could be claimed by way of deduction on accrual basis during the assessment year 1971-72 or that such liability could be treated to have accrued in that year. This finding of the High Court ran counter to the ratio of the decision of the Apex Court in Kedarnath Jute Mfg. Co. Ltd.’s case (supra )Further, even if it was held that the order of the STO had merged in the order of the Sales-tax Tribunal that would not have any impact on the decision as to when the liability to pay sales tax had accrued to the assessee on mercantile system of accounting and in which relevant assessment year the claim for deduction under section 37 could have been made by the assessee.
Bombay High Court in Ballarpur Industries Ltd [2017] 84 taxmann.com 295 (Bombay)
Assessee established a paper factory – It entered into agreement with State Government in year 1947 in terms of which license to cut and remove bamboos was granted at Rs. 5 per Air dry metric ton (ADMT) and thereupon under the 1968 agreement, royalty was payable at Rs. 60 per ADMT – Thereafter, State Government informed assessee in March 1983 that it had decided to fix revised rate for royalty at Rs. 200 per ADMT – Said enhancement of royalty by State Government was challenged in writ petition by assessee – During pendency of writ petition, Court directed assessee to pay royalty at rate of Rs. 115 per metric ton – Assessee claimed entire amount of Rs. 115 per ADMT as revenue expenditure – Assessing Officer disallowed assessee’s claim on ground that it was contingent liability – Tribunal, however, allowed assessee’s claim – Whether when there is a debt, fact that amount is to be ascertained does not make it any less a debt if liability is certain and what remains is only quantification – Held, yes – Whether in view of aforesaid legal position, royalty paid at rate of Rs. 115 per ADMT was to be allowed as deduction – Held, yes
Standard Mills Co. Ltd [1998] 100 TAXMAN 535 (BOM.) [21-03-1997]
Assessee claimed deduction on account of excise duty on basis of show-cause notices received from excise authorities – Assessee, in reply to said notices, had denied any liability on account of excise duty and excise authorities also passed no order demanding any amount in pursuance of show-cause notices – Whether assessee itself having shown said amount of excise duty in its profit and loss account and balance-sheet by way of a note as contingent liability, inasmuch as there was no liability actually existing against assessee in year of account, impugned amount could not constitute exp