TMI Blog2022 (12) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... d the order of the ld. CIT (A) - Appeal filed by the Revenue stands dismissed. - ITA No. 2220/Del./2017 - - - Dated:- 14-12-2022 - SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER And SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER ASSESSEE BY : Shri Rakesh Gupta , Advocate Shri Somil Agarwal , Advocate REVENUE BY : Shri Abhishek Kumar , Sr. DR ORDER PER SHAMIM YAHYA , ACCOUNTANT MEMBER : This appeal by the Revenue is directed against the order of the ld. CIT (Appeals)-14, New Delhi dated 09.12.2016 for the assessment year 2012-13. 2. The ground of appeal taken by the Revenue reads as under :- Whether the Ld. CIT(A) was justified in deleting the addition of Rs.1,79,91,058/- made by the AO u/s 43B of the I. T.Act , 1961 on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of appellate proceedings the Ld. AR vide his letter dated 23.11.2016 has submitted as under:- 1. While disallowing the unpaid service tax amounting to Rs.1,79,91,058/- (Annexure-9) for period up to 31.03.2012 u/s 43B, the learned ACIT has assumed that the service tax has been routed through Profit Loss account and has been claimed as deduction. It is abundantly clear that the said section is only applicable to the disallowance of any deduction otherwise allowable, what is charged or chargeable against the profits of the assessee and have been claimed as an expense/deduction in the Profit Loss Account of the assessee., though the same has not been paid by the assessee till the due date of filing of the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CHEME, 2013 (VCES), and filed the declaration on 30.08.2013 covering the period up to 31.12.2012, under which the service tax was to be deposited on or before 31st December, 2014. As such appellant company was not assessee in default in any manner whatsoever, The Form VCES-2 (Annexure-10) with details of service tax liability period wise (Annexure-11) are the conclusive proofs that the service tax was paid in compliance of the VCES,2013 and discharge certificate was issued to the effect. In view of the above, the addition of Rs.1,79, 91,058/- is sought to be deleted. 5. Ld. CIT (A) agreed with the above submissions. He held that service tax is collected on services rendered which is a liability collected on behalf of the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018) 95 taxmann.com 294, Mumbai Bench; (viii) DCIT vs. M/s. M.C. Retail Pvt. Ltd., ITA No.419/Mum/2017 dated 28.09.2018, ITAT Mumbai Bench; (ix) Envision Enterprise Solutions Pvt. Ltd. vs. ITO, ITA No.315/Hyd/2016, dated 12.08.2016, ITAT Hyderabad Bench; (x) Vijay Associates Wadhwa Construction Pvt. Ltd. vs. Addl.CIT, ITA No.5460/Mum/2015 dated 16.01.2018, ITAT Mumbai Bench; and (xi) Planet Advertising Pvt. Ltd. vs. ACIT, ITA No.1500/Del/2011 dated 05.07.2013, ITAT, Delhi Bench. 8. Upon careful consideration, we note that ITAT in the case of Planet Advertising Pvt. Ltd. vs. ACIT (supra) adjudicated the identical issue as under :- Ld. Counsel of the assessee submitted that issue involved is squarely covered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) 145 A includes sales tax, excise duty, etc. in the turnover of purchases and sales of goods, but it does not apply to services and hence service tax cannot be included in the turnover. (3) In the given case, the assessee had not preferred a claim for the amount of service tax. Further, there was no liability on the assessee to make payments to the credit of Central Government because of non-receipt of payments from the receiver of services. Therefore, the rigor of S. 43B is not attached and the CIT (A) was right in deleting the additions made on account of disallowance u/s 43B. 9. We further find that in the case of CIT Vs. Noble and Hewitt India Pvt. Ltd. (Supra) Hon ble Delhi High Court has held as under :- In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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