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TMI Blog2016 (5) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) - 10 ('CIT(A)-10') has grossly erred in confirming the actions of the Assessing Officer of making addition of Rs. 11,34,14,190/- being the amount of Service Tax to the total revenue for the computation of profit under Section 44B of the Income-tax Act, 1961 ('the Act'). 2. On the facts and in the circumstances of the case, the learned CIT(A) - 10 has legally erred in not following the order of Income Tax Appellate Tribunal (ITAT) in appellants own case for A.Y.2008-09 and A.Y.2007-08. 3. On the facts and in the circumstances of the case, the learned CIT(A) - 10 has legally erred in not granting reasonable and adequate opportunity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernational Taxation) vs. Technip Offshore Contracting BE" ITA No.4613/Del/2007 vide order dated 16.01.09 wherein the Delhi Tribunal has held that since the service tax collected by the assessee was directly in connection with the services and facilities as spelt out in section 44BB(2), hence, the amount of service tax collected by the assessee is to be included in the total receipts for determining the presumptive profit under section 44BB. 4. Being aggrieved by the above action of the AO, the assessee filed appeal before the Ld. CIT(A). The Ld. CIT(A), relying upon the decision of the coITA ordinate bench of the Tribunal in the case of "M/s. China Ship Container Lines (Hong Kong) Company Ltd." in ITA No.8516/M/10 dated 23.08.13, upheld th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) has already been considered by the Mumbai Bench of the Tribunal in the case of "Islamic Republic of Iran Shipping Lines vs. Dy. Director of Income Tax" 11 taxman.com 349 wherein it has been held that the service tax since has been collected by the assessee on behalf of the government which is a statutory liability and does not involve any element of profits and accordingly the same cannot be included in the total receipts for determining the presumptive income. The co-ordinate bench of the Tribunal, thus, in the own case of the assessee has decided the issue in favour of the assessee. Following the said decision, the co-ordinate bench of the Tribunal, in the own case of the assessee for A.Y. 2008-09, has again observed that the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier year, unless, there is a change in law, change in facts and circumstances of the case or the same is contrary to the decision rendered by a jurisdictional high court or apex court. In the absence of any of such circumstances, the earlier decision of the Tribunal in assessee's own case has to be applied. In view of the ratio of law laid down by the co-ordinate bench of the Tribunal in the case of "Marubeni Corporation vs. DCIT" (supra) which has been further followed by the Tribunal in the case of "Islamic Republic of Iran Shipping Lines" for A.Y. 2010-11 (supra) and in the light of decision of the Hon'ble Delhi High Court in the case of "DIT vs. Mitchell Drilling International Pvt. Ltd." (supra), we hold that service tax collected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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