N.N. Mathur, J.-The Income-tax Appellate Tribunal, Jaipur, at the instance of the assessee, Wolkem Pvt. Ltd.,

has referred the following question of law for the opinion of this Court: “Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the excise duty collection was a trading receipt in the year of receipt and hence excise duty refund of Rs. 1,45,752 was liable to tax in the hands of the assessee under Section 41(1) of the Income-tax Act, 1961 ?“

.2. The background facts relevant for answering the instant reference, briefly stated are as follows:-The assessee-company filed its return for the assessrnent year 1986-87 declaring total incorne of Rs. 11,34,310 derived frorn the business of minerals known as calcite and wollastonite. In response to the notice under Section 143(2)1142(1) the representative of the assessee-company produced the books of account which reveal that during the assessrnent proceedings excise duty refundable to the assessee was worked out to a surn of Rs. 2,91,500. Out of the said arnount a sum of Rs. 1,09,38 1 was directly claimed by various customers from the Excise Department. Thus, the assessee-