A.R. Tiwari, J.

1. At the instance of the Department, the Tribunal has stated the case on application registered as R. A. No. 385/Ind. of 1991 arising out of I.T.A. No. 412/Ind. of 1989 and C. O. No. 70/Ind. of 1989 and referred the undernoted question of law for our consideration and opinion :

" Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that mandi fee was not a tax nor a duty within the meaning of Clause (a) of Section 43B of the Income Tax Act, 1961"

2. Briefly stated, the facts of the case are that the year of assessment is 1984-85. The accounting period ended on November 4, 1983. Section 43B was inserted in the by the Finance Act, 1983, with effect from April, 1, 1984. It was thus operative for the assessment year 1984-85. There was an outstanding balance of Rs. 5,978 in the mandi tax account. According to the Income Tax Officer, as this amount had remained unpaid, the provisions of. Section 43B were attracted. He, therefore, made an addition of Rs. 5,978. On appeal, the Commissioner of Income Tax (Appeals) held that the provisions of Section 43B of the Income Tax Act, 1961, as it then stood, were inapplicable to mandi tax. He, therefore, deleted the addition of Rs. 5,978. The Department then filed the appeal before the Tribunal. The Tribunal held that it was neither a mandi tax nor a duty, but a fee and the word "fee" was inserted in Section 43B(a) with effect from April 1, 1989. The Tribunal placed reliance on Srihakollu Subba Rao and Co. v. Union of India : [1988]173ITR708(AP) and dismissed the appeal of the Department and allowed the cross-objection of the assessee pro tanto. The Department felt aggrieved and filed an application under Section 256(1) of the Income Tax Act, 1961. On this application, the Tribunal stated the case and referred the aforesaid question of law for our consideration and opinion.

3. We have heard Shri D.D. Vyas, learned counsel for the applicant, and Shri Nazir Singh, learned counsel for the non-applicant.

4. Counsel for the non-applicant submitted that the point as projected stands concluded by the decisions in Srihakollu Subba Rao and Co. v. Union of India : [1988]173ITR708(AP) and CIT v. Mohansingh and Sons : [1995] 216 ITR 432. [LQ/MPHC/1995/395]

5. The Tribunal considered the matter and took the decision as under :

" As regards the mandi tax, in I.T.A. No. 627/Ind. of 1986 decided on February 21, 1991, we have taken a view that mandi tax falls outside the scope of taxes mentioned under Section 43B of theand such a fee came to be treated as a tax only with effect from April 1, 1989, when the provisions of Section 43B were amended. Following the same view, we hold that the mandi fee levied is neither a tax nor a duty under Section 43B of thethen existing at the relevant point of time. The decision of the Andhra Pradesh High Court in Srikakollu Subba Rao and Co. v. Union of India : [1988]173ITR708(AP) , also supports the same view. Therefore, the Revenues appeal has no merit on this point."

6. We are satisfied with the correctness of the order and the refusal of the Tribunal to state the case. The Tribunal correctly appreciated the facts and applied the law. The point stands concluded.

7. In the result, we answer the question in the affirmative, i.e., in favour of the assessee and against the Department.

8. This miscellaneous civil case thus stands decided in terms indicated above, but without any order as to costs. Counsel fee is, however, fixed as Rs. 750, if certified for each side.

9. A copy of this order be transmitted to the Tribunal immediately.