|COURT:||Bombay High Court|
|CORAM:||A. K. Menon J., S. C. Dharmadhikari J|
|CATCH WORDS:||sales-tax remission|
|COUNSEL:||A. K. Jasani, Niraj Sheth, S.E. Dastur|
|DATE:||December 5, 2014 (Date of pronouncement)|
|DATE:||December 5, 2014 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 41(1): Payment of Net Present Value of sales-tax deferral loan does not constitute a taxable "benefit"|
The High Court had to consider whether the judgement of the Special Bench of the Tribunal in Sulzer India Ltd vs. JCIT 138 ITD 1 (SB)(Mum) that the difference between the Net Present Value of sales-tax liability and its future liability is not chargeable to tax u/s 41(1) is correct or not. HELD by the High Court affirming the judgement of the Special Bench:
Premature payment of Sales Tax already collected but not remitted to the Government is not covered by S. 43B. because otherwise the provision would have been worded accordingly. The applicability of s. 41(1)(a) has to be considered in the light of whether the liability is a loss, expenditure or trading liability. In this case, the scheme under which the Sales Tax liability was deferred enables the Assessee to remit the Sales Tax collected from the customers or consumers to the Government not immediately but as agreed after 7 to 12 years. If the amount is not to be immediately paid to the Government upon collection but can be remitted later on in terms of the Scheme, then, we are of the opinion that the exercise undertaken by the Government of Maharashtra in terms of the amendment made to the Bombay Sales Tax Act and noted above, may relieve the Assessee of his obligation, but that is not by way of obtaining remission. The worth of the amount which has to be remitted after 7 to 12 years has been determined prematurely. That has been done by finding out its NPV. If that is the value of the money that the State Government would be entitled to receive after the end of 7 to 12 years, then, we do not see how ingredients of sub section (1) of section 41 can be said to be fulfilled. The obligation to remit to the Government the Sales Tax amount already recovered and collected from the customers is in no way wiped out or diluted. The obligation remains. All that has happened is an option is given to the Assessee to approach the SICOM and request it to consider the application of the Assessee of premature payment and discharge of the liability by finding out its NPV. If that was a permissible exercise and in terms of the settled law, then, we do not see how the Assessee can be said to have been benefited and as claimed by the Revenue. The argument of Mr. Gupta is not that the Assessee having paid Rs.3.37 crores has obtained for himself anything in terms of section 41(1), but the Assessee is deemed to have received the sum of Rs.4.14 crores, which is the difference between the original amount to be remitted with the payment made. Mr. Gupta terms this as deemed payment and by the State to the Assessee. We are unable to agree with him. The Tribunal has found that the first requirement of section 41(1) is that the allowance or deduction is made in respect of the loss, expenditure or a trading liability incurred by the Assessee and the other requirement is the Assessee has subsequently obtained any amount in respect of such loss and expenditure or obtained a benefit in respect of such trading liability by way of a remission or cessation thereof. As rightly noted by the Tribunal, the Sales Tax collected by the Assessee during the relevant year amounting to Rs.7,52,01,378/was treated by the State Government as loan liability payable after 12 years in 6 annual/equal installments. Subsequently and pursuant to the amendment made to the 4th proviso to section 38 of the Bombay Sales Tax Act, 1959, the Assessee accepted the offer of SICOM, the implementing agency of the State Government, paid an amount of Rs.3,37,13,393 to SICOM, which, according to the Assessee, represented the NPV of the future sum as determined and prescribed by the SICOM. In other words, what the Assessee was required to pay after 12 years in 6 equal instalments was paid by the Assessee prematurely in terms of the NPV of the same. That the State may have received a higher sum after the period of 12 years and in installments. However, the statutory arrangement and vide section 38, 4th proviso does not amount to remission or cessation of the Assessee’s liability assuming the same to be a trading one. Rather that obtains a payment to the State prematurely and in terms of the correct value of the debt due to it. There is no evidence to show that there has been any remission or cessation of the liability by the State Government. We agree with the Tribunal that one of the requirement of section 41(1)(a) has not been fulfilled in the facts of the present case (CIT vs. McDowell (Kar) referred).
i am sorry how elementary things revenue dos not understand, what kind of revenue dept our great finance ministry has?
but for high courts taxpayers would be taken for granted, it is high time HC shd tell the revenue never fail to follow natural justice besides procedure laid down by laws as also natural justice that would be the need of hour.
i am sorry we are wasting so much salaries and remuneration on so called public servants
Never ever think that the Revenue is serious of collecting the Governmental dues from Assessee… Most of the appeals emerge not because of their ernestness to keep Governemt without loss , but because AOs have no reason to “satisfy” or the Revenue officials dont want to take risk by taking a logical decision and burn their fingers . Government also do not want to loosen the controls as it knows that most of the Revenue Officials are corrupt and they will allow the Assessee to take advantage of some loopholes in the system. Each strata of revenue officials are suspicious each other due to their compulsions well known to them …So the need of the hour is to reduce Chances of corruption in these depts either through more computerisation or automation or rewarding and promoting less corrupt .( even a tax on Bank Transactions as some quarters suggesting)..But unless there is a change in the attitude of public servants nothing will work out good and it is the duty of a good leader of this country to try something in that direction , so that there is saving of public money without indulging in wasteful appeals and counter appeals