Disputed Excise Duty liability cannot be allowed without actual payment of the same

During the period relevant to the assessment year, the respondent assessee had received Rs.42,05,173/- from the Excise Department as refund of excise duty paid. The Assessing Officer included this amount in the profit and loss account and accordingly computed the taxable income. The aforesaid addition was deleted by the CIT(Appeals) and the said order has been affirmed by the impugned order passed by the Income Tax Appellate Tribunal (tribunal, for short) dated 31st May, 2004. The ground given by the tribunal for deleting the said addition is that the Excise Department had appealed against the...