ACIT 5(3), MUMBAI V. TEKSONS LTD, MUMBAI

ITA 4218/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9528 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 26-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 25-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Business income; Depreciation; Wrong claim; Bad and doubtful debts
• Section: 43B; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI F BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI RAJENDRA SINGH, AM & SHRI VIJAY PAL RA O, JM ITA NO.4509/MUM/2010 & ITA NO. 4218/MUM/2010 (ASST YEAR 2005-06 ) M/S TEXSONS LTD KOLSHET ROAD, KAPURBAWDI PO BOX NO.20 THANE 400 601 VS THE ADDL COMMR OF INCOME TAX 5(3), MUMBAI (APPELLANT/RESPONDENT ) (RESPONDENT/APPELLANT ) PAN NO. AABCT0522A ASSESSEE BY SH JITENDRA JAIN REVENUE BY SHRI MANOJ KUMAR DT.OF HEARING 26 TH NOV 2012 DT OF PRONOUNCEMENT 30 TH ,NOV 2012 ORDER PER VIJAY PAL RAO, JM THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER DATED 17.3.2010 OF THE COMMISSIONER OF INCOME TAX(APPEALS) FOR THE ASSESSM ENT YEAR 2005-06. ITA NO.4509/MUM/2010 (BY THE ASSESSEE) 2 THE ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE G ROUNDS IN THIS APPEAL: I) THE LD COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN LAW AND ON FACTS IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER DISALL OWING DEPRECIATION ON PLANT AND MACHINERY TO THE EXTENT OF ` 16,83,140/- U/S 32 OF THE I T ACT ON UNJUSTIFIABLE AND UNTENABLE GROUNDS. II) THE LD COMMISSIONER OF INCOME TAX(APPEALS) ERRE D IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER DISALLOWING SUM OF ` 1,48,540/- UNDER PROVISIONS OF SECTION 14A OF THE I T ACT 1961. III) THE LD COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN SUSTAINING THE ORDER OF THE ASSESSING OFFICER DISALLOWING THE PAYMENT OF COMMISSION OF ` 22,18,500/- ON UNJUSTIFIABLE AND UNTENABLE GROUNDS. 3 GROUND N O.1 IS REGARDING DISALLOWING OF DEPRECIA TION ON PLANT AND MACHINERY. ITA NO 4509 & 4218/M/2010 M/S TEXSONS LTD . 2 3.1 IN THE ASSESSMENT PROCEEDINGS, THE ASSESSING OF FICER NOTED THAT THE ASSESSEE HAS PURCHASED MACHINERY WORTH ` 1,32,49,408/- VIDE INVOICE DATED 2.10.2003 WHICH IS RELATED TO FINANCIAL YEAR 2003-04. THE ASSESSEE CLAIMED DEPRECIATION ON SUCH ADDITION OF THE MACHINERY. THE ASSESSING OFFICER AS KED THE ASSESSEE TO FILE EVIDENCE TO SHOW THAT THE MACHINERY ALONG WITH OTHER ACCESSO RIES WERE INSTALLED AND COMMISSIONED IN THE YEAR UNDER CONSIDERATION. THE ASSESSEE FILED A CERTIFICATE FROM THE PLANT MANAGER (PRODUCTION) AND VICE PRESIDENT (MANUFACTURING) CERTIFYING THAT SUCH MACHINERIES HAVE BEEN INSTALLED AND COMMISSION ED DURING THE YEAR UNDER CONSIDERATION. THE ASSESSING OFFICER WAS OF THE V IEW THAT SUCH CERTIFICATE DOES NOT AND CANNOT SERVE ANY USEFUL PURPOSE SO FAR AS THE ASSESSEES CLAIM OF DEPRECATION IS CONCERNED, BECAUSE BOTH THE PLANT MANAGER(PRODU CTION) AND VICE PRESIDENT (MFG)ARE IN-HOUSE PERSONNEL. THE ASSESSING OFFICE R HAS OBSERVED THAT THE ASSESSEE HAS NOT FURNISHED ANY INDEPENDENT CERTIFICATE FROM THE CONCERNED ENGINEERS AND/OR OTHER TECHNICAL PERSON WHO COULD HAVE ACTUALLY HAD A ROLE IN SETTING UP THE MACHINERY AND BRINGING INTO PRODUCTION USE. ACCORD INGLY, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF DEPRECIATION OF ` 16,83,140/- ON THE SAID MACHINERY. 3.2 ON APPEAL, THE COMMISSIONER OF INCOME TAX(APPEA LS) HAS CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON SIMI LAR REASONING THAT MERELY FILING OF CERTIFICATES FROM IN-HOUSE PERSONNEL IS NOT ENOU GH. 4 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT THE MACHINERY IN QUESTION IS NOT A STAND-ALONE MACHINERY BUT ONLY IN TEGRAL PART OF THE PRODUCTION LINE. HE HAS FURTHER SUBMITTED THAT IT IS ONLY REPLACING ALL THE EXISTING PARTS OF THE MACHINERY AND THEREFORE, ONCE IT IS INSTALLED AND T HE CERTIFICATE OF THE PLANT MANAGER (PRODUCTION) AND THE VICE PRESIDENT (MFG) H AS BEEN PRODUCED, NOTHING ITA NO 4509 & 4218/M/2010 M/S TEXSONS LTD . 3 MORE IS REQUIRED TO PROVE THE INSTALLATION AND USE OF THE MACHINERY. THE LD AR HAS FURTHER SUBMITTED THAT THE PLANT MANAGER (PRODUCTIO N) AND THE VICE PRESIDENT (MFG) ARE QUALIFYING ENGINEERS, WHO HAVE INSTALLED THE MA CHINERY AND PUT THE SAME FOR PRODUCTION DURING THE YEAR UNDER CONSIDERATION. HE HAS RELIED UPON THE ORDER DATED 30.8.2001 OF THE COORDINATE BENCH OF THIS TRI BUNAL IN THE CASE OF M/S RALLIS INDIA LTD IN ITA NO.5257/MUM/2008. 4.1 ON THE OTHER HAND, THE LD DR HAS RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE HAS NOT PRODU CED ANY RECORD EXCEPT A CERTIFICATE OF ITS OWN PERSONNEL/STAFF; THEREFORE, THE ASSESSEE FAILED TO ESTABLISH THE INSTALLATION AND USE OF THE MACHINERY DURING THE YE AR. 5 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE ABOUT THE FACT THAT TH E MACHINERY WAS PURCHASED IN THE EARLIER YEAR AND THE ASSESSEE DID NOT MAKE ANY CLAI M OF DEPRECATION BECAUSE THE SAME WAS NOT INSTALLED AND PUT TO USE IN THE EARLIE R YEAR. THUS, THE PURCHASE OF MACHINERY IS MUCH PRIOR TO THE YEAR UNDER CONSIDERA TION. THE ASSESSEE CLAIMED THE DEPRECIATION FOR THE YEAR UNDER CONSIDERATION BECAU SE THE ASSESSEE CLAIMED THAT THE MACHINERY IN QUESTION HAS BEEN INSTALLED AND PU T TO USE. IN SUPPORT OF THE CLAIM, THE ASSESSEE FILED A CERTIFICATE OF THE PLANT MANAG ER (PRODUCTION) AND VICE PRESIDENT (MFG) WHICH IS AT PAGE 8 OF THE PAPER BOOK. THE AS SESSING OFFICER DID NOT ACCEPT THE SAID CERTIFICATE AS A CONCLUSIVE EVIDENCE TO ES TABLISH THAT THE MACHINERY ACTUALLY INSTALLED AND PUT TO USE FOR CLAIMING THE DEPRECIATION. 5.1 IT IS TO BE KEPT IN MIND THAT IF THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE CERTIFICATE FILED BY THE ASSESSEE ABOUT THE INSTAL LATION AND USE OF MACHINERY, THEN THE CONCERNED OFFICER OF THE ASSESSEE COULD HAVE BE EN SUMMONED FOR EXAMINING ITA NO 4509 & 4218/M/2010 M/S TEXSONS LTD . 4 AND BRINGING THE REAL FACT ON RECORD. BUT THE ASSES SING OFFICER DID NOT EXERCISE HIS POWERS TO FIND OUT THE REAL FACT. IT IS NOT THE CASE OF THE ASSESSEE THAT THE MACHINERY IN QUESTION WAS INSTALLED WITH THE HELP O F THE OUTSIDERS; BUT THE ASSESSEE TOOK THE SAND THAT THE MACHINERY WAS INSTALLED AND PUT TO USE BY ITS OWN QUALIFIED ENGINEERS AND ACCORDINGLY FILED THE CERTIFICATE. T HOUGH, THE CERTIFICATE IN QUESTION IS UN-DATED; HOWEVER, THE ASSESSING OFFICER HAS NOT PO INTED OUT ANY DEFECT IN THE SAID CERTIFICATE. PRIMA FACIE, IT APPEARS THAT THE ASSES SEE INSTALLED THE MACHINERY DURING THE YEAR; HOWEVER, EXCEPT THE UN-DATED CERTIFICATE, THE ASSESSEE HAS NOT BROUGHT ON RECORD ANY OTHER MATERIAL IN SUPPORT OF THE CLAIM; THEREFORE, IT BECOMES NECESSARY THAT THE ASSESSING OFFICER SHOULD PROPERLY EXAMINE THE CLAIM OF THE ASSESSEE. IN THESE FACTS AND CIRCUMSTANCES OF THE CASE AND IN TH E INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE AUTHORITIES BELOW AND REMAND THE I SSUE TO THE RECORD OF THE ASSESSING OFFICER TO RE-EXAMINE THE FACTS OF THE CA SE AND THEN DECIDED THE ISSUE AS PER LAW. 6 GROUND NO.2 IS REGARDING DISALLOWANCE U/S 14A. 7 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. BOTH THE LD AR AN D THE LD DR HAVE FAIRLY CONCEDED THAT THIS ISSUE IS REQUIRED TO BE RECONSIDERED AND ADJUDICATED BY THE ASSESSING OFFICER IN THE LIGHT OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GODREJ AND BOYCE MFG. CO. LTD. V. DEPUTY COMMISS IONER OF INCOME-TAX REPORTED IN 328 ITR 81 (BOM). ACCORDINGLY, THIS ISSUE IS RE MITTED TO THE RECORD OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH IN THE LIGHT O F THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GODREJ AND BOYCE MFG CO LTD (SYUPRA). 8 GROUND NO.3 IS REGARDING DISALLOWANCE OF COMMISSI ON PAYMENT. ITA NO 4509 & 4218/M/2010 M/S TEXSONS LTD . 5 8.1 THE ASSESSEE COMPANY HAS SHOWN A PAYMENT OF ` 22,18,500/- AS COMMISSION PAID TO M/S KRISHNA AGENCIES. THE ASSESSING OFFICE R ASKED THE ASSESSEE TO EXPLAIN THE PAYMENT OF THE COMMISSION. THE ASSESSEE SUBMITT ED BEFORE THE ASSESSING OFFICER THAT THE ASSESSEE COMPANY HAD EXPORTED GOODS TO VAR IOUS PARTIES IN TANZANIA MANY YEARS BACK. THESE PARTIES HAVE MADE THE PAYMENT TO THE LOCAL BANK IN TANZANIA. HOWEVER, DUE TO LACK OF FOREIGN EXCHANGE, THE BANK HAD NOT REMITTED THE MONEY TO INDIA AS THE GOVT. OF TANZANIA HAD PROHIBITED THE R EMITTANCE. THUS, THIS AMOUNT WAS STUCK SINCE MORE THAN 20 YEARS. M/S KRISHNA AGENC IES HAD GOOD RELATIONS WITH THE DIRECTORS OF THE ASSESSEE COMPANY AS WELL AS WITH T HE TANZANIAN GOVERNMENT AND THE BANK IN TANZANIA. M/S KRISHNA AGENCIES HAD APP ROACHED THE ASSESSEE AND HAD OFFERED TO GET THE PAYMENT RELEASED TO THE ASSESSEE FOR A COMMISSION. SINCE THE AMOUNT WAS PENDING FOR MORE THAN 20 YEARS, THE ASSE SSEE HAD AGREED TO PAY THE COMMISSION, IF THE PAYMENT WAS RELEASED. FINALLY TH E ASSESSEE WAS ABLE TO GET THE PAYMENT AND PAID THE AGREED COMMISSION TO M/S KRISH NA AGENCIES. THE ASSESSING OFFICER DID NOT ACCEPT THE EXPLANATION OF THE ASSES SEE AND OBSERVED THAT SINCE THE PROOF OF SERVICES RENDERED BY M/S KRISHNA AGENCIES HAS NOT BEEN PRODUCED; THEREFORE, THE CLAIM OF THE ASSESSEE WAS DISALLOWED . 8.2 ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPE ALS) CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 9 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT THIS AMOUNT PERTAINS TO THE YEAR 1981-82 AND FINALLY THE ASSESSEE WRITTEN O FF THE SAID AMOUNT AS BAD DEBT SOMEWHERE IN THE YEAR 1986-87. NOW AFTER A GAP OF L ONG PERIOD WHEN THE ASSESSEE RECEIVED THE PROPOSAL OF GETTING RELEASED THIS AMOU NT AGAINST THE PAYMENT OF COMMISSION OF 10%, THE ASSESSEE AGREED FOR THE SAME . THE LD AR HAS REFERRED THE ITA NO 4509 & 4218/M/2010 M/S TEXSONS LTD . 6 COPY OF THE OFFER/PROPOSAL OF M/S KRISHNA AGENCIES PLACED AT PAGE 3 OF THE PAPER BOOK. HE HAS ALSO REFERRED THE INVOICE ISSUED BY M /S KRISHNA AGENCIES ON THE REMITTANCE OF THE SAID AMOUNT. M/S KRISHNA AGENCIE S HAS ALSO ACKNOWLEDGED THE RECEIPT OF THE PAYMENT VIDE RECEIPT AT PAGE 5 OF TH E PAPER BOOK. THUS, THE LD AR HAS SUBMITTED THAT WHEN THE ASSESSEE HAS OFFERED TH E SAID RECEIPT U/S 41(1) OF THE IT ACT, THEN THE PAYMENT OF COMMISSION AS PER THE NEGO TIATIONS BETWEEN THE PARTIES IS AN ALLOWABLE CLAIM OF THE ASSESSEE. 9.1 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE ASSESSING OFFICER HAS MADE ENQUIRIES AND FOUND THAT M/S KRISHNA AGENCIES HAD NO OTHER BUSINESS EXCEPT THE INTEREST INCOME ON SOME FD. THEREFORE, THERE WA S NO RECORD AND FACTS SUGGEST THAT ANY SERVICE WAS RENDERED BY M/S KRISHNA AGENCI ES FOR BRINGING THE SAID AMOUNT BACK TO INDIA. THE LD DR HAS RELIED UPON THE ORDE RS OF THE AUTHORITIES BELOW AND SUBMITTED THAT BOTH THE LOWER AUTHORITIES HAVE GIVE N A FINDING THAT WHEN M/S KRISHNA AGENCIES HAS NO OFFICE IN TANZANIA AND ALSO HAS NO BUSINESS OR OTHER CONNECTION WITH THE GOVERNMENT OF TANZANIA AND WITH THE BANKS, THEN THE PAYMENT OF COMMISSION IS WITHOUT ANY SERVICES RENDERED TO THE ASSESSEE. 10 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE ASSESSEES AM OUNT WAS STUCK IN THE BANK IN TANZANIA DUE TO CERTAIN ORDERS OF THE GOVERNMENT OF TANZANIA AGAINST THE REMITTANCE OF THE AMOUNT BY THE BANKS. THE ASSESSE E HAS ALREADY WRITTEN OFF THE AMOUNT AS BAD DEBTS AND AFTER A GAP OF MORE THAN 20 YEARS WHEN THE ASSESSEE GOT AN OPPORTUNITY TO GET THE AMOUNT REMITTED, THEN THE AMOUNT OF COMMISSION PAID BY THE ASSESSEE, IN OUR VIEW IS NOT AN EXCESSIVE CLAI M OF THE ASSESSEE. THE AUTHORITIES BELOW HAVE DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT M/S KRISHNA ITA NO 4509 & 4218/M/2010 M/S TEXSONS LTD . 7 AGENCIES HAS NOT RENDERED ANY SERVICES TO THE ASSES SEE IN THIS RESPECT. HOWEVER, THE ASSESSING OFFICER EXAMINED THE TAX RECORDS OF M /S KRISHNA AGENCIES AND FOUND THAT EXCEPT THE AMOUNT OF COMMISSION PAID BY THE AS SESSEE AND BANK INTEREST ON FD, NO OTHER BUSINESS INCOME HAS SHOWN BY M/S KRISH NA AGENCIES AND ACCORDINGLY, CONCLUDED THAT M/S KRISHNA AGENCIES HAS NOT DONE AN Y BUSINESS. 10.1 IT IS TO BE NOTED THAT THE RETURNED AND ASSESS ED INCOME OF THE ASSESSEE IS LOSS WHEREAS M/S KRISHNA AGENCIES HAVE OFFERED THE COMMI SSION INCOME TO TAX WHICH CLEARLY SHOWS THAT THE CLAIM OF COMMISSION EXPENDIT URE IS REVENUE NEUTRAL AND RATHER IT HAS POSITIVE REVENUE GENERATING BECAUSE M/S KRIS HNA AGENCIES HAVE OFFERED THE SAID AMOUNT TO TAX. THESE FACTS AND CIRCUMSTANCES CLEARLY SHOW THAT THERE WAS NO SCOPE OF ANY MOTIVE FOR BOGUS CLAIM. PRIMA FACIE, IT IS A GENUINE CLAIM OF THE ASSESSEE. HOWEVER, SINCE THE AUTHORITIES BELOW HAVE NOT EXAMINED THE RELEVANT RECORDS WHICH IS THE PROPOSAL MADE BY M/S KRISHNA A GENCIES REGARDING THE REMITTANCE OF THE AMOUNT AGAINST THE COMMISSION OF 10%; THEREFORE, FOR LIMITED PURPOSES, WE REMIT THIS ISSUE TO THE RECORD OF THE ASSESSING OFFICER FOR CONSIDERING THE RELEVANT RECORDS AND THEN DECIDE THE ISSUE AS PER L AW. ITA NO. 4218/MUM/2010 (BY THE REVENUE) 11 THE REVENUE HAS RAISED THE ONLY GROUND AS UNDER: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN ALL OWING RELIEF OF ` 41,47,705/- IN FAVOUR OF THE ASSESSEE IN VIEW OF S ECTION 145A WHEN THE DEDUCTION ON ACCOUNT OF ADVANCE IS NOT CONTEMPLATED U/S 43B OF THE IT ACT. 11.1 THE ASSESSING OFFICER NOTED THAT THE ASSESSEE IS NOT FOLLOWING INCLUSIVE METHOD OF ACCOUNTING FOR VALUATION OF INVENTORIES, WHICH I S REQUIRED TO BE FOLLOWED AS PER PROVISIONS OF SECTION 145A OF THE I T ACT. SINCE T HE ASSESSEE HAS NOT INCLUDED THE ITA NO 4509 & 4218/M/2010 M/S TEXSONS LTD . 8 MODVAT IN THE VALUE OF THE CLOSING STOCK ON ACCOUNT OF EXCISE DUTY PAYABLE, THE ASSESSING OFFICER HELD THAT AN AMOUNT OF ` 41,47,705/- IS REQUIRED TO BE INCREASED IN THE VALUE OF WORK-IN-PROGRESS AND CLOSING STOCK ON ACCOUNT OF MODVAT AND EXCISE DUTY PAYABLE. 11.2 ON APPEAL, THE COMMISSIONER OF INCOME TAX(APPE ALS), THOUGH CONCURRED WITH THE VIEW OF THE ASSESSING OFFICER SO FAR AS IN CREASE IN THE VALUE OF WORK-IN- PROGRESS AND CLOSING STOCK; HOWEVER, THE COMMISSIO NER OF INCOME TAX(APPEALS) WAS OF THE VIEW THAT IF THE TAX PAYABLE ARE ALLOWAB LE AS DEDUCTION U/S 43B OF THE I T ACT, THEN NO ADDITION/ADJUSTMENT IS REQUIRED U/S 1 45A OF THE ACT. 12 WE HAVE HEARD THE LD DR AS WELL AS THE LD AR OF THE ASSESSEE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THERE IS NO QUARR EL ON THE POINT THAT THE VALUATION OF THE INVENTORIES HAS TO BE MADE AFTER MAKING THE ADJUSTMENT ON ACCOUNT OF MODVAT AND EXCISE DUTY PAYABLE ON FINISHED GOODS. THE ONLY GRIEVANCE OF THE REVENUE IN THIS APPEAL IS REGARDING THE ALLOWABILIT Y OF DEDUCTION U/S 43B OF THE I T ACT. 12.1 THE LD AR OF THE ASSESSEE HAS REFERRED AND REL IED UPON THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF FO URESS ENGG (INDIA) LTD VS ITO REPORTED IN 26 SOT 178(MUM) AS WELL AS IN THE CASE OF HAWKINS COOKERS LTD VS ITO REPORTED IN 14 DTR(MUM)(TRIB) 206 AND SUBMITTED TH AT IF THE PAYMENT OF TAX HAS BEEN MADE BEFORE THE DUE DATE OF FILING OF RETURN, THEN A SEPARATE DEDUCTION FOR THE SAME IS ALLOWABLE U/S 43B. 12.2 AS WE HAVE MENTIONED ABOVE THAT THE ASSESSEE H AS NOT DISPUTED THE ADDITION MADE U/S 145A OF THE I T ACT; HOWEVER, AT THE SAME TIME, THE ASSESSEE HAS ITA NO 4509 & 4218/M/2010 M/S TEXSONS LTD . 9 CLAIMED DEDUCTION U/S 43B IN CASE OF EXCISE DUTY AC TUALLY PAID BEFORE THE DUE DATE OF FILING OF THE RETURN. 12.3 WE FIND MERITS IN THE CLAIM OF THE ASSESSEE U/ S 43B. HOWEVER, THE ASSESSING OFFICER HAS NOT EXAMINED THIS CLAIM OF THE ASSESSEE ; THEREFORE, THIS ISSUE IS REQUIRED TO BE VERIFIED BY THE ASSESSING OFFICER WHETHER TH E ASSESSEE HAS PAID THE ENTIRE AMOUNT OR ANY PART OF THE TAX IN QUESTION BEFORE TH E DUE DATE OF FILING OF RETURN OF INCOME. ACCORDINGLY, WE REMIT THIS ISSUE TO THE RE CORD OF THE ASSESSING OFFICER FOR EXAMINATION AND DECIDING THE CLAIM OF THE ASSESSEE U/S 43B. 13 IN THE RESULT, APPEAL OF THE ASSESSEE AS WELL AS THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH , DAY OF NOV 2012. SD/- SD/- ( RAJENDRA SINGH ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 30 TH , NOV 2012 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI