JUDGMENT BY THE COURT :
Pursuant to the direction of this Court under sub-s. (2) of s. 256 of the Income-tax Act, 1961 (in brief the Act), the Tribunal has referred the following questions relating to asst. yr. 1972-73 for the opinion of this Court :
"1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the extra amount of Rs. 1,03,445 realised on enhanced price of sugar had not accrued in the relevant assessment year ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the order of the AAC deleting the additions of Rs. 1,47,520 on account of commission to M/s. Bharat Vyopari Mandal ?
3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the deletion of the disallowance of Rs. 1,669 as interest being paid on the delayed payment of provident fund ?
2. So far as question No. 1 is concerned, it is squarely covered by a decision of this Court in Dhampur Sugar Mills Ltd. vs. CIT 1991 UPTC 93. In that case this Court held that the difference amount which was indisputed, was subject to the condition that such amount is put in an account in the name of District Magistrate which the assessee was not entitled to operate. In the instant case also, the Tribunal found that the difference of sugarcane price was subject to an interim order passed by the High Court and final disposal of the said amount could be done only on the basis of the order of the High Court and that the assessee had no control over the amount which was subject to the interim order. Following the decision of this Court in Dhampur Sugar Mills Ltd. vs. CIT (supra), we answer the question in affirmative that is in favour of the assessee and against the Revenue.
3. Coming to the second question, the brief facts are that the assessee claimed deduction of commission of Rs. 1,47,529 which according to the assessee had been paid to the selling agents, namely, M/s. Bharat Vyopari Mandal as commission for the sale of sugar. The ITO following the orders for the earlier years held that the payment was made for extra commercial reasons. He, therefore, disallowed the claim of the assessee. On appeal, the AAC accepted the contention of the assessee and deleted the addition. The Tribunal on further appeal relying on its order for the asst. yr. 1969-70 upheld the order of the AAC. In its order relating to asst. yr. 1969-70, the Tribunal held : "genuineness of the agreement as also of the payments have not been doubted." Then before the Tribunal two objections had been raised that there was no necessity for the assessee to appoint sole selling agent and secondly, that the selling agent did not render any service. Both these factual objections were repelled by the Tribunal saying that appointment of the sold selling agent was quite justified and that there was abundant material on record to show that the selling agent did render services to the assessee. Such being the finding of fact, we uphold the order of the Tribunal as there is no material on record to show that the aforesaid finding of fact is incorrect. We, therefore, decide question No. 2 also in affirmative of the assessee and against the Revenue.
4. Lastly comes question No. 3, whether the Tribunal was justified in upholding the deletion of the disallowance of Rs. 1,669 being interest on delayed payment of provident fund ? This question is also fully covered by a decision of this Court in CIT vs. Kamlapat Moti Lal 1988 UPTC 467 (All) in which this Court held that payment of damages for late payment of provident fund under s. 14B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, amounted to penalty having been paid for infraction of law and hence was not allowable as business expenditure. Following the said decision, we answer this question in negative, that is, in favour of the Revenue and against the assessee. There will be no order as to costs.