R.K.AGRAWAL, J. - (1.) IN IT Ref. No. 180 of 1989, the Income -tax Appellate Tribunal, Allahabad, hereinafter referred to as "the Tribunal" has referred the following question of law under s. 256(1) of the IT Act, 1961, hereinafter referred to as "the Act" for opinion to this Court : "Whether on the facts and circumstances of the case, the Tribunal was justified in holding that the sum of Rs. 43,78,875 received on account of sales -tax refund by the assessee represented the assessee company's income chargeable to tax under s. 41(1) of the IT Act, 1961 for the asst. yr. 1980 -81
(2.) WHEREAS in IT Ref. No. 86 of 1991, the Tribunal has referred the following questions of law under s. 256(2) of the Act for opinion to this Court : "Whether the order of the Tribunal is vitiated by a failure to consider and decide all the questions relating to the taxability of the said sum of Rs. 43,78,875 which were left undecided by the JM for the reasons stated in his separate order, and were decided only by the AM ? If the answer of the aforesaid question is in the negative, "Whether on the facts and in the circumstances of the case, there was a corresponding liability in favour of the customers for an equivalent amount, which was allowable in the computation of the commercial profits of the assessee company for the asst. yr. 1980 -81 -
(3.) THE present reference relates to the asst. yr. 1980 -81. Briefly stated the facts giving rise to the present reference are as follows : During the asst. yrs. 1971 -72 to 1974 -75, the applicant was held to be not entitled for sales -tax exemption in respect of Vanaspati manufactured and sold by it. However, ultimately the apex Court had held that the applicant was entitled for exemption/sales -tax holiday for the specified period in respect of its turnover of Vanaspati manufactured in the new unit as a result of which the applicant was refunded a sum of Rs. 43,78,875, which was paid by it and also collected from its customers during the asst. yrs. 1971 -72 to 1974 -75. The question arose as to whether the sum of Rs. 43,78,875, which it had obtained as refund from the Sales -tax Department could be brought to tax under the Act or not arose before the AO, who by invoking the provisions of sub -s. (1) of s. 41 of the Act had held that it was liable to tax. The appeal preferred by the appellant failed. In further appeal before the Tribunal, the difference of opinion occurred between the AM and the JM. The AM held in favour of the Revenue whereas the JM held in favour of the applicant. The matter was referred to the Third Member, who concurred with the opinion of the AM. The Tribunal in accordance with the opinion expressed by the Third Member had held that the amount of Rs. 48 lakhs and odd is trading receipts and is liable to tax under s. 41(1) of the Act.;