DCIT 6(2)(2), MUMBAI V. ENVIROX PROTECTION CO P.LTD, MUMBAI

ITA 1668/MUM/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0203 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 09-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Assessee Lawyers: V MOHAN
• Keywords: Question of law; Tax effect
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH H, MU MBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.1668/MUM/2017 (ASSESSMENT YEAR- 2013-14) D.C.I.T.-16(2)(2), ROOM NO. 563, AAYAKAR BHAVAN, M.K. ROAD, CHURCHGATE, MUMBAI-20. VS. M/S ENVIROX PROTECTION CO. PVT. LTD., 4 TH FLOOR, SADHANA HOUSE, 570, PANDURANG BUDHKAR MARG, WORLI, MUMBAI-400018 PAN: AABCE7060N (APPELLANT) (RESPONDENT) REVENUE BY : SHRI RAM TIWARI (DR) ASSESSEE BY : SHRI V.MOHAN (AR) DATE OF HEARING : 24.08.2017 DATE OF PRONOUNCEMENT : 24.08.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY REVENUE U/S 253 OF THE INCOME-TAX AC T (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. CIT-12, MUMBAI DATED 14.03.2016 FO R THE AY 2013-14. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING DISALLOWANCE OF UNPAID SERVICE TAX OF RS. 2,68, 45,884/- U/S 43B OF THE INCOME TAX ACT IGNORING THE FACT THAT EXPENDITURE ON ACCOUNT OF SERVICE TAX COMES UNDER PROVISIONS OF 43 B OF THE ACT. 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE ORDER OF THE HON 'BLE BOMBAY HIGH COURT IN M/S OVIRA LOGISTICS PVT. LTD I N ITA NO. 1023 OF 2013 DATED 17.04.2015 RELIED UPON BY THE CIT(A) TO GIVE RELIEF TO THE ASSESSEE HAS NOT BEEN ACCEPTED ON MERIT THOUGH NO 5LP HAS BEEN F ILED ON GROUNDS OF LOW TAX EFFECT. 3. 'THE APPELLANT PRAYS THAT THE ORDER OF LD. CIT(A ) ON THE ABOVE GROUNDS BE SET ASIDE TO THE FILE GIVEN FACTS OF THE CASE. 2. AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASS ESSEE ARGUED THAT THE GROUND OF APPEAL RAISED BY REVENUE IN THE PRESENT APPEAL IS C OVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF HONBLE MUMBAI HIGH COURT IN CIT VS . OVIRA LOGISTICS PVT. LTD. ITA NO.1668/M/2017 M/S ENVIROX PROTECTION CO. PVT. LTD 2 IN ITA NO. 1023 OF 2013 DATED 17.04.2015. IT WAS FU RTHER ARGUED THAT THE HONBLE HIGH COURT ON SIMILAR QUESTION OF LAW FOLLOWED THE SAID DECISION IN A RECENT DECISION IN CIT VS. KNIGHT FRANK (INDIA) PVT. LTD. THE LD. DR FOR THE REVENUE NOT DISPUTED THE CONTENTION OF LD. AR OF THE ASSESSEE. 3. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESSING OFFICER (AO) WHILE PASSING THE ASSESSMENT ORDER MADE THE ADDITION OF RS. 2,68,45,8 84/- U/S 43B DUE TO UNPAID SERVICE TAX. ON APPEAL BEFORE THE LD. CIT(A), THE L D. CIT(A) DELETED THE ADDITION FOLLOWING THE DECISION OF CIT VS. OVIRA LOGISTICS P VT. LTD. (SUPRA). WE HAVE SEEN THAT THE LD. CIT(A) FOLLOWED THE DECISION OF HONBL E JURISDICTIONAL HIGH COURT. THE HONBLE JURISDICTIONAL HIGH COURT HELD THAT HE IS LIABLE TO PAY SERVICE TAX WILL ARISE ONLY ON RECEIVING THE FUNDS AND NOT OTHERWISE WHEN SERVICES ARE RENDERED, THE LIABILITY TO PAY SERVICE TAX IN RESPECT OF THE CONSIDERATION PAYABLE WILL ARISE ONLY UPON THE RECEIPT OF SUCH CONSIDERATION AND NOT TO OTHERWISE. WE HAVE NOTED THAT THE LD. CIT(A) DELETED THE ADDITION ON ACCOUNT OF UNPAID SERVICE TAX BY FOLLOWING THE DECISION OF JURISDICTIONAL HIGH COURT . HENCE, WE DO NOT FIND ANY ILLEGALITY OR INFIRMITY IN THE ORDER PASSED BY LD. CIT(A). THUS, THE GROUND OF APPEAL RAISED BY REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH DAY OF AUGUST 2017. SD/- SD/- (G.S. PANNU) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 24/08/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT ITA NO.1668/M/2017 M/S ENVIROX PROTECTION CO. PVT. LTD 3 BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/