Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Ashok Parnami Versus Addl. Commissioner of Income Tax, Range-5, Jaipur

2016 (3) TMI 360 - ITAT JAIPUR

Disallowance by contravention of provisions of Section 43B - service tax due had not been deposited - Held that:- The assessee has not debited service tax in P&L account, which has been shown in service tax account separately. The Hon’ble Delhi High Court in the case of CIT Vs. Noble Hewitt (I) (P) Ltd. (2007 (9) TMI 238 - DELHI HIGH COURT ) has held that the assessee followed mercantile system of accounting and collected service tax. The amount of service tax has not been debited in the P&L acc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e. The Hon'ble Supreme Court has also dismissed the SLP filed by the department in the case of CIT Vs. M/s Calibre Personnel Services Pvt. Ltd. (supra). By respectfully following the decision of both the Hon’ble Courts, we delete the addition confirmed by the ld CIT(A). - Decided in favour of assessee - ITA No. 777/JP/2013 - Dated:- 29-1-2016 - SHRI T.R.MEENA, AM AND SHRI LALIET KUMAR, JM For The Assessee : Shri Madhukar Garg (CA) For The Revenue : Shri Kailash Mangal (JCIT) ORDER PER T.R. MEENA .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l and unjustified. 2. That on the facts and circumstances of the case the learned CIT(Appeals) has erred in sustaining disallowance of ₹ 49,65,614/- under the provisions of section 43B. The disallowance sustained is unjustified and excessive. 3. That the learned CIT(Appeals) has erred in confirming the disallowance o' ₹ 2,06,757/- out of telephone expenses, conveyance, car expenses and depreciation on car. The disallowance confirmed is unjustified and excessive. 4. That the learn .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion of provisions of Section 43B of the Income Tax Act, 1961 (in short the Act). The assessee is a C&F of various companies, in transport business and other sources. The assessee filed return on 08/2/2010 declaring total income of ₹ 2,04,99,030/-. Thereafter the return was revised on 20/03/2010 showing income of ₹ 2,05,14,030/-. The case was scrutinized U/s 143(3) of the Income Tax Act, 1961 (in short the Act). The ld Assessing Officer observed that as per audit report in form N .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e Assessing Officer on page 3 and 4 of the assessment order. After considering the assessee s reply, the ld Assessing Officer has held that as per Hon'ble Supreme Court decision in the case of Chowrangee Sales Beuro Vs. CIT 87 ITR 542, sales tax collected by the assessee from its customers cannot be excluded while computing total sales of the assessee. Similar view held by the Hon ble Apex Court in the case of Mc.Dowell & Co. 154 ITR 148 that excise duty collected by the assessee is part .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

43B of the Act, therefore, service tax collected but not paid before due date of return is liable to be disallowed. Accordingly, he made addition of ₹ 60,08,570/- in the income of the assessee. 4. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had confirmed the addition, which was challenged by the assessee for ₹ 49,65,614/-, addition made by the Assessing Officer at ₹ 60,08,570/-. The operative portion of the o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of jurisdictional tribunal in which it is held that the liability to pay service tax arises only after receiving payment of services and not before that. Since appellant claimed that he did not receive payment for services for some amount, there was no liability to pay service tax in respect of that. Respectfully following the decision of jurisdictional tribunal and also various other decisions relied upon by the appellant, it is held that appellant s liability to pay service tax arises only aft .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of non receipt of payment for services, appellant is not liable to pay service tax, addition in respect of service tax relating to such service charges cannot be made under section 43B. As regards appellant s claim of service tax paid during the year but disallowed in earlier years, it is held that appellant disputed the additions and no facts are on record, therefore this claim cannot be entertained. 5. Now the assessee is in appeal before us. The ld AR of the assessee has submitted that the se .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

following mercantile system of accounting but had neither debited the amount of service tax in the Profit and Loss account nor had claimed any deduction. The Assessing Officer was not justified in disallowing part of service tax collected even if they are not deposited in the government account. The ld CIT(A) had given the findings that the assessee collected service tax to the tune of ₹ 49,65,614/- not ₹ 60,08,570/-. The procedure adopted by the assessee is that while raising invoi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eing reflected in the books of account of the assessee. Therefore, no addition can be made U/s 43B of the Act. He has further drawn our attention to the decision of Hon ble Bombay High Court in the case of CIT Vs. M/s Calibre Personnel Services Pvt. Ltd., Mumbai in Tax appeal No. 158 of 2013 order dated 02/02/2015 wherein identical view had been confirmed by the Hon'ble High Court, where the Hon'ble Supreme Court has also rejected the SLP filed by the department. Therefore, he prayed to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version