JUDGMENT S. H. KAPADIA, J. - Being aggrieved by the order passed by the Tribunal dated September 11, 2000, the department has come in appeal under section 260A of the Income-tax Act, 1961. By the impugned order, the Tribunal has set aside penalty of Rs. 5,69,798 under section 271(1)(c) of the Income-tax Act, 1961, for the assessment year 1992-93. Facts : The assessee is a private limited company engaged in the business of manufacture of non-ferrous alloys. During the course of assessment, the assessing officer noticed that an amount of Rs. 9,90,953 was collected by the assessee. However, it was not credited to the profit and loss account. In reply to a query, the assessee submitted that it has maintained a separate account for sales tax collected, and therefore, Rs. 9,90,953 was not credited to the profit and loss account. It was further argued by the assessee that by maintaining a separate account for sales tax collected, the profit and loss account was not affected. This argument of the assessee was rejected by the assessing officer who made an addition of Rs. 9,90,953. Based on this addition, the assessing officer initiated penalty proceedings under section 271(1)(c). Consequently, the assessing officer levied the minimum penalty of Rs. 5,69,796. When the matter came before the Tribunal, it took the view that in the case of Allied Motors Private Ltd. v. Commissioner of Income-tax [1997] 224 ITR 677 (SC), one of the issues was whether sales tax collected during a particular accounting period would be a trading receipt even though the assessee maintains a separate account for the same without crediting the same to the profit and loss account. The Tribunal took the view that this was a disputed pointed and in the circumstances, it cannot be said that the assessee had concealed the income or had furnished inaccurate particulars. Consequently, the penalty was set aside. Being aggrieve, the department has filed this appeal under section 260A of the Income-tax Act. Arguments : Mr. R. V. Desai, learned Senior Counsel appearing on behalf of the department, contended that the judgment of the Supreme Court in Allied Motors' case [1997] 224 ITR 677 had no application to the facts of this case. Being aggrieve, the department has filed this appeal under section 260A of the Income-tax Act. Arguments : Mr. R. V. Desai, learned Senior Counsel appearing on behalf of the department, contended that the judgment of the Supreme Court in Allied Motors' case [1997] 224 ITR 677 had no application to the facts of this case. Secondly, he contended that in this case, section 43B of the Income-tax Act, which was the subject-matter of the judgment in Allied Motors' Case [1997] 224 ITR 677 (SC), did not apply ot the facts of this case as in this case, the assessee had concealed the trading receipt and it was not a case of disallowance under section 43B, but it was a case of concealment of trading receipt. As stated above, none appeared for the assessee though served. Findings : We find merit in this appeal. Firstly, section 43B of the Income-tax Act deals with disallowance. That section has no application ot the present case. In the present case the assessee, having collected sales tax, failed to pay the same. Secondly, in the case of Allied Motors' case [1997] 224 ITR 677 (SC), the facts were as follows : For the assessment year 1984-85, the assessee filed the return, declaring an income of Rs. 1.91 lakhs. The Income-tax Officer disallowed deduction of Rs. 5.78 lakhs, which was on account of sales tax collected by the assessee for the last quarter of the relevant accounting year ending June 30, 1983. The amount was payable within 30 days from end of the quarter. The deduction claimed by the assessee was disallowed under section 43B, which was inserted in the statute with effect from April 1, 1984. The assessee filed an appeal to the Commissioner of Income-tax (Appeals) against the disallowance. That appeal was dismissed. The Tribunal also dismissed the appeal following the judgment of the Delhi High Court in the case of Sanghi Motors v. Union of India [1991] 187 ITR 703 and in the case of Escorts Ltd. v. Union of India [1991] 189 ITR 81. That appeal was dismissed. The Tribunal also dismissed the appeal following the judgment of the Delhi High Court in the case of Sanghi Motors v. Union of India [1991] 187 ITR 703 and in the case of Escorts Ltd. v. Union of India [1991] 189 ITR 81. It was held by the Supreme Court that in view of the proviso to section 43B of the Income-tax Act, any sum payable by way of tax or duty, etc., liability for which was incurred in the previous year, was allowable as deduction if it was actually paid by the due date of filing the returns under section 139(1) of the Income-tax Act. The Supreme Court found, on the facts, that the assessee had actually paid the tax collected before the due date for furnishing the returns under section 139(1) of the Income-tax Act. This fact is very important. In the present case, the said proviso to section 43B is not applicable as the assessee has not paid the tax before the due date. In the circumstances, the judgment of the Supreme Court in Allied Motors' case [1997] 224 ITR 677 has no application. In the present case, the assessee had concealed the trading receipt. There was no question of disallowance. There was no question of applicability of section 43B. On the facts, section 271(1)(c) was applicable. Accordingly, we answer the following question : Question : Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the penalty of Rs. 5,69,798 levied under section 271(1)(c) of the Income-tax Act, 1961, by the (Appeals) in respect of an amount of sales tax of Rs. 9,90,953 collected by the assessee but not credited to the profit and loss account as the assessee had maintained a separate accounting for the sales tax collected and thus concealed the particulars of its income and furnished inaccurate particulars ? Answer : For the reasons given hereinabove, we answer the above question in the negative, i.e., in favour of the department and against the assessee. Accordingly the appeal is allowed. No order as to costs. Appeal allowed.