B.R.ARORA, J. - (1.) THE Revenue, by this application under S. 256(2) of the IT Act, has prayed that the Tribunal, Jaipur Bench, Jaipur, may be directed to refer the following questions of law for the opinion of this Court : "Whether, on the facts and in the circumstances of the case, during the pendency of reference application under S. 256(1) filed against Tribunal's order in appeal No. ITA No. 208/Jp/88 dt. 25th Nov., 1988, in appeal preferred by the assessee against CIT Jodhpur's order under S. 263 dt. 29th Feb., 1988, was justified in deciding the appeal filed by the Department against CIT(A)'s order dt. 26th Dec., 1988 in appeal No. 1/88-89 and should not have waited for the final outcome of Department's above stated reference application ? (2) Whether the Tribunal was justified in again making an interpretation of the amended provisions of S. 43B inserted by the Finance Act, 1987, w.e.f. 1st April, 1988 which was prospective in nature or retrospective, holding that such provision was applicable to the assessment years prior to the asst. yr. 1988-89 also and, therefore, unpaid outstanding sales-tax liability on the last day of the accounting period of the assessment year under consideration would not be disallowed and added back to the declared assessable income of the assessee in the face of the fact that entire sales-tax collection during the accounting period was a taxable receipt and as per S. 43B deduction against such sales-tax could be allowed only for the amounts actually paid out of the above sum to the Government account till their last day of the accounting period. Thus, in view of the above, the Hon'ble Bench was justified in holding that the actual sales-tax payment made by assessee upto the end of this assessment year's accounting period at Rs. 99,574 could be allowed as deduction against the addition on account of entire sales-tax realisation in this accounting period from the customers and thus deducting this addition made by the Assessing Officer in the declared income, as per assessment order under S. 143(3)/263 dt. 18th March, 1988, made in pursuance of the CIT, Jodhpur's order under S. 263 of the IT Act, 1961 ?"
(2.) THE controversy raised in the present case stands squarely covered by the Division Bench judgment of this Court rendered in DB IT Ref. No. 9 of 1992 [CIT vs. Achaldass Dhanraj decided on 23rd March, 1995 reported at (1995) 128 CTR (Raj) 325]. The question sought to be referred for the opinion of the High Court is identical with the question which was referred in DB IT Ref. No. 9 of 1992. While answering the reference in DB IT Ref. No. 9 of 1992 [CIT vs. Achaldass Dhanraj] (supra) this Court held as under : "The Tribunal was justified in directing that the amount of unpaid Sales-tax liabilities to the last date of previous year could not be disallowed if it is found to have been paid subsequently within the time allowed under the relevant Sales-tax Act. The proviso to S. 43B for that purpose is to be interpreted as clarificatory and applicable to the assessment years from 1984-85 to 1987-88." Since the controversy raised in the present case stands decided by the judgment of this Court, it will be a futile exercise to direct the Tribunal to refer the aforesaid questions of law for the decision of this Court. The questions sought to be referred stand decided by this Court in DB IT Ref. No. 9 of 1992 (supra). In this view of the matter, we do not find any merit in this application as no referable questions of law are made out in view of the aforesaid judgment.
(3.) SINCE no referable question of law is made out, the application under S. 256(2) of the IT Act has no merit and the same is hereby dismissed.;