B. S. KAPADIA, J. ( 1 ) THE petitioner has filed this writ petition for a writ of mandamus or any other appropriate writ order or direction asking the respondent to pass immediately an order refunding Rs. 74 79 6 with interest at the rate of 15% per annum from 1-4-1985 and also to pass such other and further order as the interest of justice demands in the matter. ( 2 ) THE petitioner is a Public Limited Company and is an assessee under the Income Tax Act 1961 for the last many years. The respondent is the Income Tax Officer who is having jurisdiction to assess the Income of the petitioner-Company. The petitioner has paid total advance tax of Rs. 74 8 487 and the tax deducted at source was Rs. 70 519 making the total of the two sums Rs. 74 79 6 in the accounting year being the Calendar year ending on 31-12-1933. The estimated income of the petitioner-assessee for the accounting year 1983 was Rs. 1 32 52 900 in the estimate of advance tax filed in the year. The petitioner has submitted on 26 its income-tax return (under sec. 139 (1) of the Income Tax Act) showing the loss of Rs. 75 84 532 for the assessment year 1984- 85 the corresponding accounting year 1983. The above position was made clear in the statement of accounts of computation of total income which is annexed as Annexure-A to the petition. ( 3 ) ACCORDINGLY the petitioner addressed to the respondent a letter dated 20-7-1984. In the said letter the above position was made clear and it was pointed out that income-tax payable thereon comes to Rs. nil whereas the petitioner has paid income tax to the tune of Rs. 74 79 6 as stated above and requested that the total amount refundable to the petitioner-assessee came to Rs. 74 79 6 Thus the petitioner requested the respondent to release the refund order under see. 141a of the Income Tax Act. A copy of the said letter is annexed as Annexure -C to the petitioner. ( 4 ) THE submission of the petitioner is that the Income Tax Officer was under obligation to make provisional assessment after making adjustment under sub-sec. (2) of sec. 141a of the Income Tax Act. A copy of the said letter is annexed as Annexure -C to the petitioner. ( 4 ) THE submission of the petitioner is that the Income Tax Officer was under obligation to make provisional assessment after making adjustment under sub-sec. (2) of sec. 141a of the Act but the petitioner did not hear anything from the respondent to its letter of 20/07/1984 The petitioner therefore approached the Inspecting Assistant Commissioner of Income Tax and subsequently the petitioners Chartered Accountant addressed a letter dated 17/09/1984 to the Inspecting Assistant Commissioner of Income Tax Range-I Baroda to the effect that it was very kind of him to agree that a draft order under sec. 141a of the Act will be passed by the Income Tax Officer the respondent herein and that the said draft order will be discussed with the petitioners Chartered Accountant before finalising the same. The petitioner-assessee waited for the draft order but no such order was received and the matter did not move for some time. ( 5 ) THE petitioner thereafter received a letter dated 7/12/1984 from the respondent herein stating inter alia that the petitioner had claimed she following two amounts : (1) Excise duty paid on closing stock of finished goods lying at various depots. Rs. 29 89 439 (2) Custom duty paid as per statement. Rs. 1 24 94 85 and it was pointed out that no reference was available in the audited statement of accounts furnished along with the return and that the particulars of the custom duty excise duty and sales tax debited to the accounts of that year and that paid during the accounting year have not been furnished along with the return and that in the absence of these particulars he was not able to consider the petitioners application under sec. 141a of the Act and that he did not think that these deductions can be considered as prima facie allowable within the meaning of sec. 141a of the Act for which no reference was available either in the return or in the audited statement of accounts. In the said letter the respondent therefore called upon the petitioner to furnish the above mentioned details at the earliest so that application under sec. 141 can be considered. The copy of the said letter is produced as Annexure-E to the petition. In the said letter the respondent therefore called upon the petitioner to furnish the above mentioned details at the earliest so that application under sec. 141 can be considered. The copy of the said letter is produced as Annexure-E to the petition. ( 6 ) THE petitioners Chartered Accountant thereafter wrote a letter to the respondent on 20-12-1984. Along with the said letter he submitted the statement showing the total customs duty actually paid and also the statement of total excise duty actually paid and pointed out that the actual customs duty paid was Rs. 2 78 54 262 out of which the customs duty included in the valuation of the closing stock was deducted i. e. the amount of Rs. 1 24 94 65 was deducted and the remaining amount of Rs. 1 53 60 177 was debited to the profit and loss account. Similarly in the statement with regard to excise duty it was pointed out that the total excise duty that was paid was Rs. 5 25 60 931 out of which the excise duty included in the valuation of closing stock of finished goods at various depots i. e. Rs. 29 80 439 was deducted and the remaining amount of excise duty paid namely Rs. 4 95 88 492 was debited to the profit and loss account. Copy of the said letter is annexed as Annexure-F to the petition. ( 7 ) THE respondent was under obligation to pass a provisional refund order under sec. 141a of the Act within six months from the date of filing of the return but as nothing was heard from the respondent Income Tax Officer though the period of six months expired the petitioners Chartered Accountant called on the Income Tax Officer on 14 and requested him to send the order under sec. 141a of the Act on or before 30/06/1985. ( 8 ) THE respondent by his letter dated 7-7-1985 (Annexure-H) stated that the order under sec. 141a for the provisional assessment for refund has to be made on satisfaction of two conditions; firstly in case the I. T. O. finds that the assessment cannot be completed within the period of six months from the date of filing of return and secondly if he finds that after making the adjustments as permitted under subclause (ii) of this section there is a case for refund. The respondent pointed out in the said letter that the refund of Rs. 74. 79 lakhs has been worked out in the return by claiming double deduction of the following two amounts: (1) Excise duty paid on closing stock of finished goods lying at various depots. Rs. 29 80 439 (2) Custom duty paid as per statement. Rs. 1 24 94 85 according to the respondent because of the verbal communication no order under sec. 141a was passed. Further it is pointed out in the said letter that it would be a case of double deduction in respect of the aforesaid two amounts. According to him the excise duty of Rs. 4. 87 crores (including the said amount of Rs. 29. 80 lakhs) and the customs duty of Rs. 2. 78 crores (including the aforesaid amount of Rs. 1. 2 crores) as paid during the year has already been debited to the profit; and loss account and the aforesaid two amounts in closing stock are there as part of the cost element consistent with the established accounting principles. According to him therefore by no stretch of imagination it can be said that the customs duty and excise duty which has been paid during the year which has been included in the closing stock has not been allowed as deduction because the entire customs and excise duty paid during the year is already debited to the profit and loss account along with the manufacturing expenses. According to him the Scheme was introduced to allow deduction on actual payment and not to allow double deductions. ( 9 ) AFTER receiving the aforesaid letter the petitioner gave reply by letter dated 21-7-1985 (Annexure-I to the petitions requesting the respondent to pass the order under sec. 141a of the Act and also pointing out that the petitioner Company has sought the opinion of the counsel that the petitioner Company was justified in claiming the customs and excise duty. In response to the said letter the respondent wrote another letter dated 2-8-1985 (Annexure-J to petition) wherein he has pointed tout that whole of the excise duty and the import duty as paid during the accounting year under consideration will be an allowable deduction and in that very connection he inquired as to whether the petitioner -Company has paid the excise duty more than the amount of Rs. 4 87 27 724 as debited to the profit and loss account and further inquired that the amount of Rs. 29 80 439 (which is also sought as further deduction in the statement of income) has not included in the aforesaid statement. Similarly in the matter of customs duty or import duty the customs duty of Rs 1 24 94 85 sought as deduction in the statement of income is not included in the import duty as cost of raw materials and debited to the profit and loss account. Further he stated that these two amounts namely Rs. 1 24 94 85 and Rs. 29 80 439 which are included as cost element in the closing statement as per the established method of accounting shall be automatically allowed in the subsequent assessment year as part of opening stock. According to him the said deduction cannot be allowed in view of the language of sec. 43 of the Act. ( 10 ) THE respondent has filed reply affidavit in this petition wherein he has taken the same stand which he had taken while giving replies to the petitioner assessee are mentioned earlier. ( 11 ) AT the time of hearing Mr. J. P. Shah the learned Advocate appearing for the petitioner submits that any sum payable by the assessee by way of tax or duty under any law for the time being it force is allowable and as per the mercantile method of accounting it would be allowable at the time when it becomes due and/or the assessee would be liable to pay the same and not on the actual payment of tax or duty but as per the newly added provision of sec. 43b of the Act it would be allowable only in computing the income referred to in sec. 28 of the previous year in which the sum is actually paid by the assessee irrespective of the previous year in which the liability to pay such tax was incurred be the assessee according to the method of accounting regularly employed. He therefore submits that the customs duty paid in the year 1983 on the raw material imported during the year though the raw materials are consumed in the year 1984 the assessee would be entitled to get allowable deduction for the assessment year 1984-85 (accounting year ending on 31-12-1983) in computing the taxable income of the petitioner assessee. He therefore submits that the customs duty paid in the year 1983 on the raw material imported during the year though the raw materials are consumed in the year 1984 the assessee would be entitled to get allowable deduction for the assessment year 1984-85 (accounting year ending on 31-12-1983) in computing the taxable income of the petitioner assessee. ( 12 ) MR. S. N. Shelat the learned Advocate appearing for the respondent submits that the words otherwise allowable used in sec. 43b of the Act would mean that it would not be allowable for the assessment year 1984-85. He submits that sec. 43b of the Act does riot enlarge the scope of deduction. According to his submission what is allowable under commercial principle under sec. 43b of the Act is made allowable deduction on the actual payment being made. He further submits that it does not permit deduction in respect of the amounts which are not allowable under commercial principles only because they are paid. He further submits that it is not an expenditure pertaining to the good sold in that year. ( 13 ) SEC. 43b of the Act reads as under:"43 Notwithstanding anything contained in any other provision of this Act a deduction otherwise allowable under this Act in respect of (a) any sum payable by the assessee by way of tax or duty under any law for the time being in force or (c) any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees. shall be allowed (irrespective of the previous year in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by him) only in computing the income referred to in sec. 28 of that previous year in which such sum is actually paid by him. Explanation For the removal of doubts it is hereby declared that where a deduction in respect of any sum referred to in clause (a) or clause (b) of this section is allowed in computing the income referred to in sec. 28 of that previous year in which such sum is actually paid by him. Explanation For the removal of doubts it is hereby declared that where a deduction in respect of any sum referred to in clause (a) or clause (b) of this section is allowed in computing the income referred to in sec. 28 of the previous year (being a previous year relevant to the assessment year) in which the liability to pay such sum was incurred by the assessee the assessee shall not be entitled to any deduction under this section in respect of such sum in computing the income of the previous year in which the sum is actually paid by him". ( 14 ) ON perusal of the language of the sec. 43b it is clear that it opens with a non-obstente clause which means that it controls the operation of other provisions of the Act and irrespective of the other provisions sec. 43b will have over-riding effect. Keeping this in mind if we examine the language of section it clearly brings out the intention of the Legislature that the deduction in respect of any tax or duty under any law would be allowable deduction in computing the income under sec. 28 of that previous year in which such sum is actually paid by the assessee. The intention is made more specific by providing that it would be so irrespective of the previous year in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by the assessee. This clearly makes out that even if the mercantile method of accounting is employed and the liability to pay might have accrued which would give the assessee a right to obtain deduction but in view of the specific language of section the assessee would not be entitled to got deduction merely on accrual of the liability to pay the tax or duty but would be so entitled to get deduction only on actual payment of tax or duty. The Legislature has also taken care by providing explanation that the assessee shall not be entitled to any deduction under sec. The Legislature has also taken care by providing explanation that the assessee shall not be entitled to any deduction under sec. 43b of the Act in respect of such sum in computing the income of the previous in which such sum is already paid by him in case a deduction in respect of any such sum was allowed in the previous year meaning thereby it is therefore clear that the assessee shall not be entitled to get the benefit twice i. e. at the time when the liability arises and also at the time when the actual payment is made. In view of the specific language of the section that deduction of the amount as mentioned in clause (a) and (b) would be allowed in the previous year in which such sum is paid. There is no scope of any doubt that such sum can be allowed by way of deduction while computing the income in the previour year in which such sum is actually paid by the assessee. ( 15 ) THERE is no dispute on the point that the amount of import duty and excise duty are allowable deducations. What is disputed on behalf of the respondent is that the amount of customs and excise duty on the value of closing stock of the petitioner assessee should not be permitted in the assessment year 1984-85 (accounting year ending on 31-12-1983) though actually paid in the year 1983 because the assessment of the closing stock of the year 1983 will be in the subsequent previous year which would be in 1984 and the relevant assessment year would be 1985-86. It is true that at the time of making assessment for the assessment year 1985-86 the respondent will have to be careful in seeing that the petitioner does not claim further deduction for the sum for which deduction is already given. In this case it is not contention of the respondent that any sum payable under clause (a) of sec. 43b of the Act was at any time claimed by way of deduction in any previous year prior to 1983. In fact the raw materials were imported and the goods were manufactured in the year 1983 and they were cleared also in the year 1983. Therefore their liability accrued in the year 1983 and they also paid the sum in the year 1983. In fact the raw materials were imported and the goods were manufactured in the year 1983 and they were cleared also in the year 1983. Therefore their liability accrued in the year 1983 and they also paid the sum in the year 1983. In that view of the matter the explanation to sec. 43b of the Act is also not attracted in the present case. ( 16 ) MR. J. P. Shah the learned Advocate appearing for the petitioner has invited our attention to the computation of the total income for the assessment year 1985-86 which is annexed to the petition as Annexure-L wherein it has been pointed out that the amount of excise duty of Rs. 29 84 439 paid on closing stock (in the year 1983) on finished goods lying at various depots was added to the net profit as per the profit and loss account. Similarly the amount of 1 24 94 85 is also added. This further assures the position that the petitionerassessee does not intend to claim double benefit for the same amount. The argument of Mr. S. N. Shelat that sec. 43b of the Act does not enlarge the scope of deduction is correct inasmuch as it speaks about the deduction otherwise allowable under this Act but his argument is not that the sum which is paid by way of import duty or liability to pay excise duty is not the sum given under the permissible deductions. Under the mercantile method of accounting as stated earlier the moment the liability is incurred it would be admissible deduction. What sec. 43b of the Act states is that irrespective of the fact that the liability is clearly incurred that would be admissible deduction only when the actual amount in that regard is paid. Therefore it is clear that in the year 1983 when the goods including the raw materials were imported and the finished goods lying at various depots were manufactured in the year 1983 (including the one under the closing stock) the liability to pay import duty and excise duty on the said goods was incurred by the petitioner assessee. When that is so it is also clear that the deduction of the said excise duty and import duty on the closing stock was allowable in the accounting year 1983 but because of the specific language of sec. When that is so it is also clear that the deduction of the said excise duty and import duty on the closing stock was allowable in the accounting year 1983 but because of the specific language of sec. 43b of the Act which has overriding effect it could not have been claimed by way of deduction unless payment thereof was made and here in this case it is not the case of the respondent that the payment of the said duty is not made and therefore it is not allowable. Therefore the submission of Mr. Shelat that deduction in respect of the amounts which are not allowable under commercial principles are claimed as deductions merely because they are paid cannot be accepted. ( 17 ) THE last facet of Mr. Shelats argument is that the expenditure of paying import and excise duty in respect of the closing stock is not pertaining to the goods sold in the year. This arguments runs counter to the mercantile method of accounting as well as to the specific language of sec. 43b of the Act. It is not disputed that the said goods in the closing stock were either imported or manufactured in the accounting year 1983 and as per the principles of mercantile method of accounting the sum incurred by way of import duty as well as excise duty would be permissible deduction in the year 1983 and particularly when the payment thereon is made under sec. 43b of the Act. Under the circumstances we do not find any merit in any of the contentions raised by Mr. Shelat and for the same reasons we accept the contentions raised by Mr. J. P. Shah appearing for the petitioner assessee. ( 18 ) COMING to the point of making provisional assessment of the petitioner assessee under sec. 141a of the Income Tax Act it is clear that this provision is a mandatory provision inasmuch as the section provides that the Income Tax Officer shall make in a summary manner within six months from the date of submission of the return the provisional assessment of the sum refundable to the assessee provided the Income Tax Officer is of the opinion that the regular assessment of the assessee is not likely to be made within six months from the date of furnishing the return. It is not the case of the respondent that he was of the opinion that the regular assessment of the petitioner assessee was likely to be made within six months from the date of furnishing of the return. This clearly shows that the Income Tax Officer has failed in discharging his statutory duty. Sec. 141a of the Act also provides that while making such provisional assessment the Income Tax Officer shall make adjustments to the income or loss declared in the return inter alia allowing any deduction allowance or relief on the basis of the information available in such return accounts and documents is prima facie admissible but is not claimed in the return and also to disallow any deduction allowance or relief claimed in the raturn which on the basis of the information available in such return accounts and documents in prima facie inadmissible. It appears from the correspondence between the respondent-I. T. O. and the petitioner assessee that though no provisional assessment has been made the respondent was of the opinion that the customs and excise duty on the closing stock was not admissible as deduction. What is to be considered is that whether such deduction is prima facie admissible or not when such provisional assessment the refund is granted and if it is subsequently found to have been wrongly granted as per the provisions of sub-sec. (4) of sec. 141a of the Act whole or the excess amount so refunded shall be deemed to be tax payable by the assessee and the provisions of the Act shall apply accordingly Sub-sec. (5) of sec. 141a of the Act also gives clear protection in dealing with the matter at the time of regular assessment providing that nothing done or suffered by reason or in consequence of any provisional assessment made under this section shall prejudice to the determination on merits of any issue which may arise in the course of regular assessment. ( 19 ) AT this juncture it would be appropriate to point out that at the time when the provisions of sec. ( 19 ) AT this juncture it would be appropriate to point out that at the time when the provisions of sec. 141a of the Act was inserted in the statute book by the Finance Act 1968 with effect from 1-4-1968 it was explained inter alia in the memorandum explaining the provisions of the Finance Act 1968 as under:"in order to avoid hardship due to delay in issue of refund in cases where the completion of regular assessment is likely to be delayed it is provision to make a new provision in the Income Tax Act enabling tax payers to claim refund of tax of a provisional assessment made on the basis of the return of income and accounts and documents accompanying it Any refund of tax on the basis of the provisional assessment will be deemed to have been issued in respect of the regular assessment when such assessment is completed". ( 20 ) IN the case of Swadeshi Cotton Mills Co. Ltd. v. Income Tax Officer Special Circle A Ward Kanpur I. T. R. 112 page-1038 it has been held that sec. 141a (1) provides that where a return has been furnished under sec. 139 and the assessee claims that the advance tax already paid by him exceeds the tax payable on the return the Income Tax Officer may make a provisional assessment of tax refundable to the assessee if in the opinion of the Income Tax Officer the regular assessment of the assessee is likely to be delayed and if no assessment has been made within six months the Income Tax Officer is bound to make a provisional assessment of tax refundable. Under the circumstances we are of the opinion that in this case the respondent-Income Tax Officer has failed to discharging his statutory duty in making the provisional assessment under sec. 141a of the Act. One of the grounds raised by the respondent is that six months time is over. That ground cannot be available to him. Otherwise in every case the Income Tax Officer may not pass any order within six months from the date of furnishing the return and when the writ petition is filed it may be opposed on the ground that provisional assessment was to be made within the period of six months. That ground cannot be available to him. Otherwise in every case the Income Tax Officer may not pass any order within six months from the date of furnishing the return and when the writ petition is filed it may be opposed on the ground that provisional assessment was to be made within the period of six months. That will be adding a premium on the conduct of the Income Tax Officer who does not discharge his statutory duty. Hence that contention raised by the respondent cannot be accepted. . ( 21 ) FOR the reasons stated above the petition is allowed. The repondent-Income Tax Officer is directed to pass an order under sec. 141a of the Income Tax Act in accordance with law and the observations made hereinabove within eight week from today. The petitioner-assessee will be entitled to costs of this petition. Petition allowed. .