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TMI Blog2024 (10) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... ntralized Processing Centre (CPC) on account of disallowance u/s 43B for non-payment of Service Tax, even though neither the tax amount was received from the customer nor was the service tax amount debited to profit and loss account. Therefore, the same may be deleted. 2. On the facts and in the circumstances of the case, the CIT(Appeals) has erred in upholding the addition of Rs. 1,77,17,182/- made by the Centralized Processing Centre (CPC) on account of disallowance u/s 43B for non-payment of Goods and Service Tax even though neither the tax amount was received from the customer nor was the tax amount debited to profit and loss account. Therefore, the same may be deleted. 3. The appellant craves leave to add, amend, and alter any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted before us that the order passed by the ld. Addl./JCIT(A)-3, Bengaluru is not correct. It was submitted that the assessee is a work contractor doing the contract work for BSNL. Due to cash crunch, BSNL has not paid the amount of service tax and Goods & Service Tax to the assessee. It was submitted that the assessee has to receive almost Rs. 12 crores as dues from BSNL. BSNL is a Government company and not paying the dues of the assessee since last 3 years. The assessee has filed the case against BSNL in MSME Samadhan and also wrote letter to the Finance Minister and the same were also produced before the ld. Addl./JCIT(A)-3, Bengaluru. It was submitted by ld. AR that the assessee has not included the amount of taxes not received from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 dated 16.01.2018, ITAT Mumbai Bench; and, (xii) Planet Advertising Pvt. Ltd. vs. ACIT, ITA No.1500/Del/2011 dated 05.07.2013, ITAT, Delhi Bench. 6. The ld. Counsel of the assessee submitted that the ld. Addl./JCIT(A)-3, Bengaluru has dismissed the appeal of the assessee on the basis of following two decisions :- (i) Mr. Ashraf Nafisa Althaf vs. ITO, ITA No.614/Bang/2023. (ii) CIT vs. Ovira Logistics P. Ltd., 377 ITR 129 (Mum.). 7. With regard to the above two decisions relied on by ld. Addl./JCIT(A)-3, Bengaluru, it was contended by LD Counsel of the assessee that the facts of the above cases are different with that of the case in hands at present. It was submitted that in the above two cases referred by ld. Addl./JCIT(A)-3, Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods & Service Tax for the period under consideration and in the cases relied on by ld. Addl./JCIT(A)-3, Bengaluru the amount of service tax was already received by the parties and not paid to the Government Exchequer. Accordingly, in our considered opinion, the case laws relied on by ld. Addl./JCIT(A)-3, Bengaluru do not apply in the present case. In this regard, we find that Hon'ble Bombay High Court in the case of CIT vs. Ovira Logistics Pvt. Ltd., (2015) 377 ITR 129 (Bombay) dismissed the departmental appeal and confirmed the order passed by ITAT wherein disallowance made u/s 43B was deleted by observing as under :- "Having perused the aforesaid decisions, we are clearly of the view that section 43B does not contemplate liability to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax into the Treasury will arise only upon the assessee receiving the funds and not otherwise. Thus the consideration has to be actually received and thereupon the liability will arise. 11. No conclusion contravening the above has been brought to our notice by the Revenue. 12. In fact, Mr. Pinto was fair enough to bring to our notice this Judgment. 13. In the circumstances, each of these appeals raise no substantial question of law. They are dismissed accordingly. The issue being covered by a Division Bench and to which one of us (Shri S.C. Dharmadhikari, J.) was a party, the appeals are disposed of but without any order as to costs." 11. So far as the decisions relied on by the ld. Addl./JCIT(A)-3, Bengaluru are concerned t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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