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 dedu