M/s. Progressive Endeavours Pvt. Ltd., , Purba Midnapore V. Pr.CIT - 9, Kolkata , Kolkata

ITA 1074/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6421 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 21-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Assessee Lawyers: K M ROY
• Section: 43B; 143(3); 263

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1074 / KOL / 20 18 ASSESSMENT YEAR :2013-14 M/S PROGRESSIVE ENDEAVOURS PVT. LTD. C/O MAHADEV GHOSH, ADVOCATE, BF-199, SALT LAKE, SECTOR-I, KOLKATA-64 [ PAN NO.AACCP 8437 F ] V/S . PR. COMMISSIONER OF INCOME TAX-9, AAYAKAR BHAWAN, DAKSHIN, GARIAHAT ROAD, (SOUTH), KOLKATA-700 068 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI K.M. ROY, FCA /BY RESPONDENT DR. P.K. SRIHARI, CIT-DR /DATE OF HEARING 14-03-2019 /DATE OF PRONOUNCEMENT 08-05-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2013-14 PR. COMMISSIONER OF INCOME TAX-9 KOLKATAS ORDER DATED 26.03.2018 PASSE D IN CASE NO.M.NO. PCIT- 9/KOL/S.263 PROCEEDING/2017-18/3760-376, IN PROCEED INGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. CASE FILE SUGGESTS THAT THE PCITS REVISION ORDE R UNDER CHALLENGE HAS DIRECTED THE ASSESSING OFFICER TO CONSIDER THE ASSESSEES SE RVICE TAX OUTSTANDING OF 84,75,625/- NOT PAID OUT OF THE TOTAL CLAIM OF 1,40,62,172/- TO BE EXIGIBLE TO 43B DISALLOWANCE NOT CONSIDERED IN THE ASSESSMENT ORDER DATED 11.01.2016. HE HAS THEREFORE EXERCISED HIS REVISION JURISDICTION VESTE D U/S. 263 OF THE ACT IN TERMING THE SAID ASSESSMENT AS BOTH ERRONEOUS AS WELL AS PREJUD ICIAL TO THE INTEREST OF THE ITA NO.1074/KOL/2018 A.Y. 201 3-14 M/S PROGRESSIVE ENDEAVOURS PVT. LTD. VS. PR. CIT- 9 KOL. P AGE 2 REVENUE ON ACCOUNT OF NON-PAYMENT OF THE UNPAID OF THE FOREGOING SERVICE TAX COMPONENT. 3. BOTH PARTIES REITERATE THEIR RESPECTIVE STANDS A GAINST AND IN SUPPORT OF THE PCITS REVISION DIRECTION UNDER CHALLENGE. WE FIND NO REASON TO CONCUR WITH PCIT DIRECTION TO THE ASSESSING OFFICER TO CONSIDER ASS ESSEES UNPAID SERVICE TAX COMPONENT (SUPRA) FOR THE PURPOSE OF INVOKING SEC. 43B DISALLOWANCE IN ABSENCE OF ACTUAL PAYMENT. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THE ASSESSEE HAD NOWHERE CLAIMED THE IMPUGNED UNPAID SERVICE TAX IN THE RELEVANT PREVIOUS YEAR. HON'BLE DELHI HIGH COURTS DECISION IN CIT VS. NOBL E AND HEWITT (I) (P) LTD. (2008) 305 ITR 324 (DEL) DECIDED ON 10.09.2007 HOLDS THAT SEC. 43B OF THE ACT STIPULATING DISALLOWANCE ON ACCOUNT OF ACTUAL NON-PAYMENT OF TH E SPECIFIED HEADS OF EXPENDITURE DOES NOT APPLY IN ABSENCE OF CORRESPONDING DEDUCT ION CLAIM RAISED BY AN ASSESSEE IN ITS PROFIT AND LOSS ACCOUNT. LEARNED CIT-DR FAILS TO DISPUTE THAT THE ASSESSEE HAD RAISED THE VERY ARGUMENT BEFORE PCIT I N PARA-4 OF SEC. 263 ORDER UNDER CHALLENGE WHICH HAS NOWHERE BEEN REBUTTED ON FACTS. WE ACCORDINGLY GO BY THE ABOVE CASE LAW TO CONCLUDE THAT THE PCIT HAS ER RED IN LAW IN HOLDING THAT ASSESSEES UNPAID SERVICE TAX AMOUNT OF 84,75,625/- DESERVES TO BE CONSIDERED FOR SEC. 43B DISALLOWANCE. HIS REVISION ORDER UNDER CHA LLENGE IS ACCORDINGLY HELD AS NOT SUSTAINABLE IN THE EYES OF LAW. THE SAME STANDS REV ERSED ACCORDINGLY. 4. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 08/05/2019 SD/- SD/- ( %) (' %) (DR.A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 08 / 05 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S PROGRESSIVE ENDEAVOURS PVT.LTD. C/O MAHADEV GHOSH, ADVOCATE, BF-199, SALT LAKE, SECTOR- I, 2. /RESPONDENT-PR. CIT-9, AAYAKAR BHAWAN, DAKSHIN, GAR IAHAT ROAD, (SOUTH) KOL-68 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ 3,