Kalyan Jyoti Sengupta, J. - (1.) By this writ petition, the petitioner challenged the order dated December 9/15, 1993, passed by the Commissioner of Income-tax, Central-I, Calcutta, being respondent No. 1, whereby and whereunder the revision application of the petitioner-assessee under Section 264 of the Income-tax Act, 1961, for allowing deduction of excise duty demanded for payment for manufacturing "hot rolled rods" during the previous years relating to the assessment years 1971-72 to 1975-76 has been rejected.
(2.) The short facts of this case are that the petitioner at all material times was and is a manufacturer of amongst other "hot rolled rods". By Notification No. 74/70-CE, dated March 26, 1970, the Central excise authorities decided that the aforesaid product is excisable. So a show-cause notice was issued against the petitioner dated January 14, 1972, but the petitioner did not accept the contention and version of the excise authorities. The petitioner replied to the show cause which was ultimately heard by the Assistant Collector of Central Excise and held that the "hot rolled rods" were excisable to Central excise duty with effect from March 26, 1970, by order dated August 28, 1972. All the Central excise authorities right up to the Central Board did not accept the petitioner's contention. So a writ petition was filed by the petitioner in this court being C. R. No. 8372(W) of 1978. On this writ petition an interim order was passed staying the operation of all the orders of the excise authorities till the disposal of the rule. Meanwhile, two notices to show cause dated December 9, 1976, and August 24, 1978, were issued to the petitioner by the Superintendent of Central Excise demanding payment of Central excise duty amounting to Rs. 3,11,62,220.72 and Rs. 1,05,20,682.63 on the said "hot rolled rods" for the period from March 26, 1970, to September 30, 1976, and October 1, 1976, to July 31, 1978, respectively.
(3.) The aforesaid dispute of excisability being the subject-matter of the writ petition was once attempted to be settled by the petitioner in view of the judgment of the Supreme Court rendered in the case of Indian Aluminium Cables Ltd. v. Union of India. The petitioner had also paid a sum of Rs. 13,13,660 towards the differential duty. However, the matter could not be settled. Ultimately, the petitioner filed a second writ petition after withdrawal of the earlier one and the said second writ petition is still pending. Therefore, it appears, the petitioner disputed the claim of the aforesaid excise duty but did not make any provision in its books of account. So the petitioner made an application claiming deduction of the aforesaid entire amount of Rs. 3,11,62,220.72 for the period from March 26, 1970, to September 30, 1976, corresponding to the assessment years 1971-72, 1972-73, 1973-74, 1974-75, 1975-76, 1976-77 and 1977-78. However, the Income-tax Officer in his assessment order dated January 28, 1981, rejected the claim of the petitioner for deduction in its entirety.;