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Section 43B of the Income-tax Act, 1961 - Business disallowance - Certain deductions to be allowed only on actual payment - Where custom and excise duty payment was disallowed for want of proof of payment, Assessing Officer was to be directed to provide an opportunity to assessee to prove payment [Matter remanded] While computing the total income the Assessing Officer had disallowed certain amount under section 43B(a) on the ground that the assessee company had not established the actual payment of customs and excise duty with necessary evidence of such payment on or before the due date. Held that the matter was to be remanded back to the Assessing Officer to decide the issue to consider the question under section 43B and pass orders in accordance with law depending upon the proof of the fact that the assessee had paid excise and customs duty before the due date. CASES REFERRED TO Berger Paints India Ltd. v. CIT [2004] 266 ITR 99/135 Taxman 586 (SC) (para 4). M.V. Seshachala for the Appellant. G. Sarangan and H. Vani for the Respondent. JUDGMENT Mrs. B.V. Nagarathna, J. - The Revenue has preferred this appeal by challenging the order dated June 20, 2005, passed in I.T.A. No. 1689/ Bang/2002 on the following substantial questions of law: "(i) Whether the Tribunal should have examined the controversy raised by the Assessing Officer that on amount of Rs. 7,52,34,374, a sum of Rs. 5,29,47,942 customs and excise duty debited to the profit and loss account was not an allowable deduction as the assessee had not established by adducing evidence that such payment had been made or before the due date as prescribed under section 139(1) of the Act ? (ii) Whether the Tribunal was correct in holding that excise duty and customs duty is claimed separately and in view of the applicability of section 43B of the Act the opening stock will stand reduced and corresponding addition to its income has to be made on mere conjectures and surmises and consequently recorded a perverse finding ?" 2. We have heard the learned counsel for the Revenue and the learned senior counsel for the respondent-assessee. The question for consideration is whether the respondent-assessee is entitled to…

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