ELECTRO OPTICS PVT. LTD.,CHENNAI vs. ITO COMPANY WARD II(1), CHENNAI

आदेश / O R D E R Assessee in this appeal filed against an order dated 26.04.2017 of ld. Commissioner of Income Tax (Appeals)-9, Chennai, assails a disallowance of Rs.3,69,776/- made by the ld. Assessing Officer which was confirmed by the ld. Commissioner of Income Tax (Appeals).

ITA No.1823/Mds/2017. :- 2 -:

As per the ld. Authorised Representative such expenditure was in fact payment of sales tax. Contention of the ld. Authorised Representative was that the ld. Assessing Officer had disallowed the claim observing that it was not allowable under sections 30 to 36 of the Income Tax Act, 1961 (in short ‘’the Act’’). As per the ld. Authorised Representative, assessee in its appeal before the ld. Commissioner of Income Tax (Appeals), had submitted that the sum represented difference between assessed tax and tax paid by the assessee, pertaining to assessment year 2002-2003. According to him, assessee had relied on Sec. 43B of the Act for the claim. As per ld. Authorised Representative, ld. Commissioner of Income Tax (Appeals) had rejected the contentions of the assessee and had taken a view that cheque issued by the assessee to Sales Tax Department, though dated 26.03.2009 was cleared subsequent to 31.03.2009. As per the ld. Authorised Representative once the cheque given by the assessee was honoured the payment related back to the date of such cheque.

Contention of the Authorised Representative was that assessee was eligible for the claim considering the proviso to Sec. 43B of the Act.

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Thus, according to him, the disallowance was rightly confirmed by the ld. Commissioner of Income Tax (Appeals).

I have considered the rival contentions and perused the 4. orders of the authorities below. It is not disputed that the sum of Rs.3,69,776/- was sales tax dues of the assessee to the Government.

A certificate dated 02.01.2012 was issued by the Deputy Commercial Officer-II, Government of Puducherry and this certificate read as under:-

GOVERNMENT Of PUDUCHERRY OFFICE Of THE COMMERCIAL TAX OFFICER -II 1OO, FEET ROAD, PUDUCHERRY UN. No.34/40003160/CIO-II/22 Puducherry, dated 02.1.2012. CERTIFICATE

I his Is to certify that M/s. Electro Optics Private Limited (IlN. 34/40003160) dealers In electronic Sensor and tripod Instruments at No.5, Preethi complex. No.12, Lenin Street, Kuyavarpalayam, Puducheny-13 has remitted a part of the central sales lax. for the assessment year 2002-03 by way of HDFC Bank Instrument No.311881, dated 26.03.2009 for an amount of ₹3,69,776/- (Rupee Three lakhs Sixty nine thousand seven hundred and seventy six only). The same was remitted Into Government account Vide Challan No.30888, dated 0//04/2009. I he said amount was collected towards central sales Tax only and not towards

Deputy Commercial Tax Officer – II. The letter given by the assessee to the Deputy Commercial Tax Officer, Puducherry while forwarding cheque No.311881, dated

ITA No.1823/Mds/2017. :- 4 -: 26.03.2009, as dues of sales tax for the year 2002-2003, reads as under:- ‘’26th March 2009. The Deputy Commercial Tax officer, Puducherry

Dear Sir, Kind Attn: Mr. Srinivasan. Sub: Payment of Balance Tax for the year 2002-2003. Ref: Tin No.34740003160, CST No.34740003160, PGST No6997/2002-2003. With reference to the above subject, in continuation to the personal hearing we had towards Assessment for the year 2002-2003. Please find enclosed hereweith a Cheque No:311881 dt.26/03/2009 for ₹3,69,776/- (Rupees Three Lakhs Sixty Nine thousand Seven hundred & seventy six only) drawn 011 HDFC Bank Ltd., being the balance Tax amount assessed to complete the Assessment for the year 2002-2003. Kindly acknowledge the same and issue the Assessment order at the earliest. Thanking you, Yours faithfully, For Electro Optics P. Ltd

Authorised Signatory’’.

Copy of the above letter placed before me carries the stamp of Commercial Tax Officer, Puducherry with the date 30.03.2009. Thus assessee had given the cheque prior to the end of the relevant previous year. There can be no dispute that once the cheque issued is honoured the payment relates back to the date of issue of cheque.

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Proviso to Sec. 43B of the Act which is also apposite is reproduced hereunder:-

‘’Provided that nothing contained in this section shall apply in relation to any sum 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-section (1) of section 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’’. Thus I am of the opinion that assessee was eligible to claim the amount as an allowance for the impugned assessment year.

Disallowance stand deleted. In the result, appeal of the assessee is allowed. 5. Order pronounced on Tuesday, the ninth day of January, 2018, at Chennai.