1. The High Court declined to call for a reference at the behest of the Revenue, of the following question.
Whether the Appellate Tribunal is right in law and on facts in directing the assessing officer to allow the claim of the assessee in respect of unpaid sales tax if the same was covered by the specific scheme of the Gujarat Government whereby the deferred payment scheme was converted into interest free loan particularly when the provisions of Section 43B are retrospective in operation.
2. Earlier, the Tribunal had declined such reference relying on its own judgment in Morvi Homological Industries (1991) 36 ITD 115 reference wherefrom had been declined, and upon a C.B.D.T. circular dated 25-9-1987, reported in 169 ITR 53.
3. We have been shown the said circular and it is clear that its provisions would apply only if a State Government had amended its Sales Tax Act to provide that the sales tax that was deferred under an incentive scheme framed by it would be treated as actually paid, so as to meet the requirements of Section 43B of the Income-tax Act. Notice does not appear to have been taken of the Gujarat Sales Tax Act to ascertain whether or not there was such an amendment. A question of law, therefore, clearly arises and it must be considered by the High Court.
4. The appeals are allowed. The order under appeal is set aside. The question quoted above shall be referred by the Tribunal to the High Court for consideration, after drawing up a Statement of case.
5. No order as to costs.