TAXAP/85/2000 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No.85 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- HONOURABLE MR.JUSTICE Z.K.SAIYED Sd/- ==================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ==================================================== ASST. C.I.T. - Appellant(s) Versus SHANTI DYEING & FINISHING WORK - Opponent(s) ==================================================== Appearance : MRS MM BHATT for MR MANISH R BHATT for the Appellant SERVED BY RPAD - (N) for Opponent(s) : 1, ==================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 21/01/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) (1) This appeal has been admitted vide order dated 20.09.2000 wherein following substantial question of law has been framed: TAXAP/85/2000 2/4 JUDGMENT “Whether the Appellate Tribunal is right in law and on facts in holding that the deposit of excise duty receipts with Bank of Baroda and thereby obtaining bank guarantee which was provided to the excise authorities would amount to “actual payment” by the assessee in terms of the provisions of sec. 43B?” (2) The Assessment Year involved is A.Y. 1985-86 and the relevant Accounting Year is S.Y. 2040. The respondent-assessee, instead of making payment of Excise Duty, furnished bank guarantee to the Excise Department and claimed deduction thereof in terms of provisions of Section 43-B of the Income Tax Act, 1961 (the Act). The Assessing Officer rejected the claim. The assessee carried the matter in appeal before the Commissioner Appeals and succeeded. The appeal filed by the Department before the Tribunal was dismissed. (3) Heard Mrs.M.M.Bhatt, learned Standing Counsel for the appellant. Though served there is no appearance on behalf of the respondent assessee. TAXAP/85/2000 3/4 JUDGMENT (4) Mrs.Bhatt has invited attention to the decision of this Court in case of Mugat Dyeing and Printing Mills Vs. Assistant Commissioner of Income-Tax, [2007] 290 ITR 282 (Guj) to submit that the issue raised by the question stands concluded in favour of Revenue by the aforesaid decision. (5) In light of the fact that the issue raised by the question stands answered by the judgment rendered in case of Mugat Dyeing and Printing Mills Vs. ACIT (supra), it is not necessary to set out facts and contentions in detail. The question is accordingly by the negative. It cannot be said that furnishing of bank guarantee towards payment of Excise Duty liabilities amounts to actual payment as envisaged by provision of Section 43-B of the Act. (6) The appeal is accordingly allowed. There shall be no order as to costs. Sd/- [ D.A. MEHTA, J ] TAXAP/85/2000 4/4 JUDGMENT Sd/- [Z.K. SAIYED, J ] *** Bhavesh*