ASST CIT 32 (1), MUMBAI V. SHRI. RAJIV R AHUJA, MUMBAI

ITA 102/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3325 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 03-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D , MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 102/MUM/2020 ASSESSMENT Y EAR: 2013 - 14 ASST. COMMISSIONER OF INCOME TAX - 32(1), ROOM NO. 702, 7 TH FLOOR, KAUTILYA BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI - 400051 VS. SHRI RAJIV R. AHUJA, 301, DORA ROSE, I C COLONY, MAIN ROAD, MANDAPESHWAR, BORIVALI (W), MUMBAI - 400103 PAN: AADPA6445J (APPELLANT) (RESPONDENT) REVENUE BY : SHRI BHARAT ANDHLE (D R) ASSESSEE BY : NONE DATE OF HEARING : 14 /09 /202 1 DATE OF PRONOUNCEMENT: 27 / 09 /202 1 O R D E R PER SAKTIJIT DEY , JM THIS IS AN APPEAL BY THE REVENUE AGAINST ORDER DATED 18.10.2019 OF LEARNED COMMISS IONER OF INCOME TAX (APPEALS) - 44 , MUMBAI FOR THE ASSESSMENT YEAR 2013 - 14 . 2. WHEN THE APPEAL WAS TAKEN UP FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. ACCORDINGLY, WE PROCEED TO DISPOSE OF THE APPEAL EX - PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND BASED ON MATERIALS ON RECORD. 2 ITA NO. 102 / MUM/2020 ASSESSMENT YEAR: 2013 - 1 4 3. THE DISPUTE IN THE PRESENT APPEAL IS CONFINED TO D ELETION OF DISALLOWANCE MADE UNDER SECTION 43B OF THE INCOME TA X ACT , 1961 TOWARDS SERVICE TAX LIABILITY. 4 . BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF CIVIL CONTRACTOR. FOR THE IMPUGNED ASSESSMENT YEAR, ASSESSEE FILED HIS RETURN OF INCOME ON 30.09.2013 , DECLARING TOTAL INCOME OF RS. 2,76,71,110/ - . IN COURSE OF ASSESSMENT PROCEEDINGS, WHILE VERIFYING THE TAX AUDIT REPORT , THE ASSESSING OFFICER ( AO ) NOTICED THAT THE ASSESSEE HAS SHOWN STATUTORY LIABILITY OF RS. 6,84,13,241/ - IN THE BALANCE SHEET. WHILE VERIFYING THE BREAK - UP OF S UCH LIABILITY, HE FOUND THAT AN AMOUNT OF RS. 2,51,49,263/ - IS TOWARDS SERVICE TAX PAYABLE FOR FINANCIAL YEAR 2012 - 13. BEING OF THE VIEW THAT SINCE THE SERVICE TAX LIABILITY WAS NOT PAID PRIOR TO THE DUE DAT E OF FILING OF RETURN OF INCOME, THE AO DISALLOWE D UNDER SECTION 43B OF THE ACT. ASSESSEE CONTESTED THE AFORESAID DISALLOWANCE BEFORE THE FIRST APPELLATE AUTHORITY. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, LEARNED COMMISSIONER (APPEALS) DELETED THE DISALLOWANCE. 5 . WE HAVE HEARD LEARNED DEPARTM ENTAL REPRESENTATIVE AND PERUSED THE MATERIALS ON RECORD. IT IS OBSERVED FROM THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) , WHILE DECIDING THE IDENTICAL ISSUE ARIS ING IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2009 - 10, THE TRIBUNAL IN ITA NO. 1764/M UM/2014 DATED 13.06.2017 HAS D ELETED THE DISALLOWANCE MADE UNDER SECTION 43B OF THE ACT ON ACCOUNT OF NON - PAYMENT OF SERVICE TAX LIABILITY. WHILE DOING SO, THE TRIBUNAL OBSERVED THAT SECTION 43B WOULD NOT BE APPLICABLE TO SERVICE TAX LIABILITY AS SERVICE T AX IS COLLECT ED ON BEHALF OF G OVERNMENT PAID TO 3 ITA NO. 102 / MUM/2020 ASSESSMENT YEAR: 2013 - 1 4 G OVERNMENT ACCOUNT. THEREFORE, THE SERVICE PROVIDER IS MERELY ACTING AS THE AGENT OF THE GOVERNMENT AND IS NOT ENTITLE D TO DEDUCTION ON ACCOUNT OF SERVICE TAX. IT IS OBSERVED , FOLLOWING THE AFORESAID DECISION IN ASSESSEES OWN CASE, LEARNED COMMISSIONER (APPEALS) HAS ALSO DELETED SIMILAR DISALLOWANCE IN ASSESSMENT YEAR 20 12 - 13. FACTS BEING IDENTICAL RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE AS REFERRED TO ABOVE, WE UPHOLD THE O RDER OF LEARNED COMMISSIONER (APPEALS) ON THE ISSUE. GROUND RAISED IS DISMISSED. 6 . IN THE RESULT, APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH SEPTEMBER , 2021 . SD/ - SD/ - ( RAJESH KUMAR ) ACCOUNTANT MEMBER (SAKTIJIT DEY) JUDICIAL MEMBER MUMBAI ; DATED: 27 / 09 /202 1 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, / /TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBA I