Commissioner Of Income Tax vs Iffco Ltd.
2004 Latest Caselaw 1447 Del

JUDGMENT

B.C. Patel, C.J.

1. These three appeals are preferred under Section 260A of the IT Act, 1961 (hereinafter referred to as "the Act"), by the Revenue raising a question that the Tribunal was not correct in allowing the deduction on accrual basis although Section 43B of the Act specifically refers to actual payment. There is no controversy about the fact that the respondent/assessed is required to remit 1 per cent of the net profit as per Section 61 of the Multi State Co-operative Societies Act, 1984, and Multi State Co-operative Societies Rules, 1986. Rule 4 of the said Rules refers to contribution towards Co-operative Education Fund and it is in view of this rule that 1 per cent of the net profit is required to be contributed by the Multi State Cooperative Society. This amount is to be placed with the fund maintained by the National Co-operative Union of India Ltd., New Delhi.

2. According to the assessed, this contribution is not a cess, tax, duty or fee and, therefore, Section 43B would not be applicable. However, before the Tribunal, the question has not been specifically raised by the Revenue or by the assessed. It was submitted that in terms of Section 37, the amount of contribution to the said fund is an allowable deduction. The issue is that if Section 43B is applicable then it will be allowed on actual payment basis only. If not, then it may be allowed on accrual basis. The key question is whether the contribution to the said fund is a "tax, duty, cess or fee". This aspect has not been examined by the Tribunal and, therefore, it would be appropriate to remit the matter to the Tribunal to dispose of the same in accordance with law and to return a finding as to whether Section 43B would be applicable or not.

The appeals are disposed of accordingly.