The main legal point established is that the taxability of a refunded amount under section 41(1) of the Income-tax Act can be challenged through the statutory remedy of reference under section 256.

OM PRAKASH, J.

1. The petitioner, a limited company, had collected sales tax amounting to Rs. 43,78,875 from its customers and had deposited the same under protest with the Sales Tax Department in earlier years. The said sum was subsequently refunded by the Sales Tax Department in view of the Supreme Court judgment dated December 12, 1978, and was brought to tax under section 41(1) of the Income-tax Act, 1961, for the assessment year 1980-81. The petitioner appealed to the Commissioner of Income-tax (Appeals), but failed. Then the dispute was carried to the Income-tax Appellate Tribunal. There was difference of opinion between the Accountant Member and the Judicial Member on the point of taxability of the aforesaid amount. The Accountant Member took the view that the assessee in the assessment year under appeal had obtained a refund of 43,78,875 in respect of such a trading liability and that the receipt was because of the remission or cessation of the liability to sales tax, therefore, the provisions of section 41(1) of the Act are clearly applicable to the case.

2. The Judicial Member took a dissenting view, since, according to him, the petitioner was not allowed any deduction in respect of sales tax refund for the earlier assessment years 1970-71 to 1974-75 and hence section 41(1) had no application to the petitioners case.

Thereafter, the Bench of the Appellate Tribunal referred the following question for the opinion of the third Member :

"Whether, on the facts and in the circumstances of the case, the assessee was allowed the deduction within the meaning of section 41(1) of the Income-tax Act, 1961, in earlier years in respect of sales tax payable by it to the Government ?"

3. The third Member, to whom the aforesaid question was referred for decision, approved the view of the Accountant Members that the assessee was indeed allowed deductions within the meaning of section 41(1) Act, 1961, in the earlier years in respect of sales tax. The Bench of the Appellate Tribunal, therefore, upheld the taxability of the amount refunded to the petitioner as per the majority view.

4. On these fact, we are of the view that the taxability of the amount of Rs. 43,78,875 having been decided by the Appellant Tribunal, the petitioner has a statutory remedy by way of reference under section 256 of the Act of 1961, and we do not see any good ground to exercise our extraordinary jurisdiction under article 226 of the Constitution in the matter.

Sri Sudhir Chandra, learned counsel for the petitioner, however, urged that the petitioner had raised two more issues before the Appellate Tribunal to oppose the taxability of the sum of Rs. 43,78,875 but they were not referred to by the Judicial Member in his order and thus there was no decision of the Appellate Tribunal on those two issues. That being so, Sri Sudhir Chandra further urged that the remedy of reference under section 256 could not be of any avail to the petitioner in so far as those two issues are concerned and the writ petition is the only remedy. Elaborating the issues, Sri Sudhir Chandra argued that on behalf of the petitioner it was contended before the Appellate Tribunal that after refund of the sales tax amount, the amount had been kept in a separate account and that had become payable to the customers, from whom the amount was realised and the petitioner held that amount only as trustee. As the petitioners liability had arisen in favour of the customers, a contention was raised before the Tribunal that the amount was not taxable under section 41(1) of the Act. Also, according to Sri Sudhir Chandra, it was contended before the Appellate Tribunal that the amount was not taxable in the assessment year 1980-81. The submission of Sri Sudhir Chandra is that both these issues were not touched upon by the Judicial Member in his order and thus there was no order of the Appellate Tribunal thereon and there being no order of the Appellate Tribunal on these two important issues, no referen