JUDGMENT
1. This writ petition is directed against two notices both dated January 27, 1997, issued under Section 143(2)/142(1) of the income-tax Act, 1961 (for short "the Act"), for the assessment years 1990-91 and 1992-93 and also against a notice under Section 154 of the same date in relation to the assessment year 1990-91. By the impugned notices, the petitioner has been called upon to show cause, inter alia, as to why certain disallowances should not be made in computing its total income for the aforesaid two assessment years in view of the provisions contained in Section 43B of the Act inasmuch as, the petitioner had not deposited the amounts of Central sales tax collected by it in the previous years relevant to the assessment years stated earlier!
2. We have heard learned counsel for the parties.
3. Section 43B of the Act provides for certain deductions in the computation of total income only on actual payment. It provides, inter alia, that notwithstanding anything contained in the provisions of the Income-tax Act, a deduction otherwise allowable under that Act in respect of any sum payable by the assessee by way of tax, duty, cess or fee, etc., under any law for the time being in force, shall be allowed only in computing the income referred to in Section 28 of that previous year in which such sum was actually paid by him. Under the first proviso, an exception is provided and such deduction may be permissible to an assessee if the payment is actually made by him on or before the due date for furnishing the return of income under Sub-section (1) of Section 139 in respect of the previous year in which the liability to pay such sum was incurred.
4. It was contended on behalf of the petitioner that Section 43B on the facts has no application. The proposed disallowance under the impugned notices in respect of tax amount realised under the Central Sales Tax Act, by the assessee in the previous year relevant to the aforesaid two years and not actually paid, cannot be disallowed. It was urged that with regard to the liability of the petitioner to pay the tax under the Central Sales Tax Act a writ petition is pending before this court and the question raised therein is as to whether the petitioner was entitled to the grant of benefit of deferment of payment of sales tax dues in view of Section 8(2A) of the U. P. Trade Tax Act, 1948, read with Rule 43 of the Rules framed under that Act and the Government order dated January 29, 1985, and so long that controversy is not decided by this court, further assessment proceedings in pursuance of the impugned notices should not be allowed to proceed.
5. It was further urged that with the returns of total income filed under the Income-tax Act for the assessment years in dispute a note was appended and it was also mentioned in the balance-sheet that since the petitioner had opted for deferment of payment of sales tax under Section 4A read with Section 8(2A) of the U. P. Trade Tax Act and the Government order dated December 28, 1989, no tax was payable and, therefore, Section 43B of the Act was not applicable. The grievance of the petitioner was that despite the exemption claimed by the petitioner the impugned show-cause notices have been issued proposing certain disallowances of its tax liability under Section 43 of the Act.
6. We have considered the submission carefully. In our opinion, no case for interference has been made out at least at this stage of proceedings. Now merely because a writ petition is pending with regard to the claim of the petitioner, as stated earlier, that is not a sufficient ground where this court may stall and injunct the continuation of further proceedings in pursuance of the impugned notices. It is for the petitioner to give an appropriate reply to the impugned show-cause notices and to take such defence as may be open to it under law. We have no reason to think that if any reply is filed to the show-cause notices, the concerned authority will not deal with the case of the petitioner in accordance with law and to allow a relief if any, called for on the facts and circumstances of the case. The petitioner will have ample opportunity before the assessing authority to make out its case and if dissatisfied with its decision, there is adequate provision under the Income-tax Act whereby an aggrieved person can seek redressal of his grievances before other authorities constituted under the Act.
7. The writ petition is, accordingly, dismissed without entering into the merits of the case, leaving it open to the petitioner to contest the impugned notices before the concerned authority as indicated earlier. The stay order dated March 21, 1995, is hereby discharged.