TMI Blog2015 (4) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... of the consideration payable will arise only upon the receipt of such consideration and not otherwise. In the facts and circumstances of the case, we are of the view that no substantial question of law arises. Accordingly, the Appeal has no merit and the same is dismissed. - Decided against revenue. - INCOME TAX APPEAL NO.1023 OF 2013 - - - Dated:- 17-4-2015 - S. C. Dharmadhikari And A. K. Menon, JJ. For the Appellant : Mr. Arvind Pinto For the Respondent : Mr. Percy Pardiwalla, Senior Counsel, a/w Sameer Dalal Judgment(PER A. K. Menon, J.): The present appeal is filed by the revenue proposing that the following questions are substantial questions of law: (a) Whether on the facts and circumstances of the case an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 43B by holding that a sum of ₹ 41,97,663/ had already been paid before due date of filing return and, therefore, could not be disallowed under section 43B of the Act. As far as the remaining amount of ₹ 48,10,998/ was concerned, the Commissioner of Income Tax (Appeals) has held that the same could not disallowed under section 43B of the Act since it was not payable as on 31st March, 2007. It was found that the amount on which service tax was payable had not been received from the parties to whom services were rendered. As a result, the provisions of section 43B were not attracted. 4] Being aggrieved by the order of the Commissioner of Income Tax (Appeals), the Revenue filed an appeal before the Tribunal on vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disallowance by rejecting the ground of Appeal by the Revenue. 7] Mr. Pardiwalla, the learned Senior Counsel, appearing on behalf of the respondent supported the order of the Tribunal and the Commissioner of Income tax (appeals). According to him, the Commissioner of Income Tax(Appeals) had correctly deleted the disallowance of the amount of ₹ 48,10,998/ which amount had not become payable by reason that since the relevant credit had not been received in the Assessee's account. Mr. Pardiwalla relied upon a decision of the Delhi High Court in case of the Commissioner of Income Tax V/s. Noble and Hewitt (I) P. Ltd. (2008) 305 ITR 324 in which according to him the fact situation was somewhat similar. The Assessing Officer and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me under mercantile system of accounting even without actual payment. This decision would not now apply by virtue of specific provision of section 43B of the Income Tax Act under which liability to pay service tax is only on receipt of the amount by the assessee. Accordingly in Pharma Search (supra) the Tribunal granted the relief to the assessee. We make a mention of the same in view of the fact that the order of the Tribunal in M/s. Pharma Search (supra) came to be challenged in this Court in Income Tax Appeal No.370/2013 wherein the only question of law that was admitted was relating to the keyman insurance policy. The aspect of liability to pay service tax before the same was actually received by the assesse was not admitted in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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