GYANDEV SADH, MUMBAI V. ACIT CIR 20(1), MUMBAI

ITA 1731/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92569 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 18-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 04-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORADR
• Assessee Lawyers: B R MAJITHIA
• Keywords: Business income
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.1731/MUM/2013 ASSESSMENT YEAR: 2008-09 SHRI GYANDEV SADH, PLOT NO.52, 7 TH ROAD, MIDC, MAROL, ANDHERI (E), MUMBAI-400093 / VS. ACIT-20(1), ROOM NO.603, 6 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI-400012 ( #$%& /ASSESSEE) ( ' / REVENUE) P.A. NO. JVPS5541C #$%& / ASSESSEE BY SHRI B.R. MAJITHIA ' / REVENUE BY SHRI VIJAY KUMAR BORA-DR ( ') * &+ / DATE OF HEARING : 18/05/2015 * &+ / DATE OF ORDER: 18/05/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 14/01/2013, OF THE LD. FIRST APPELLATE AUTHORITY, M UMBAI. THE ONLY GROUND RAISED THIS APPEAL PERTAINS TO CONFIRMI NG THE SHRI GYANDEV SADH 2 ADDITION OF RS.8,49,684/- ON ACCOUNT OF SERVICE TAX COLLECTED AND PAID BY THE ASSESSEE WHILE RECEIVING THE HOUSE RENT. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI B.R. MAJITHIYA, ADVANCED HIS ARGUMENTS WHICH A RE IDENTICAL TO THE GROUND RAISED BY CONTENDING THAT T HE SERVICE TAX SO COLLECTED WAS DULY DEPOSITED WITH THE GOVERN MENT, THUS, NO INCOME ACCRUED TO THE ASSESSEE. HOWEVER, THE LD. DR, SHRI VIJAY KUMAR BORA, DEFENDED THE CONCLUSION ARRIVED A T IN THE IMPUGNED ORDER. 2.1. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, WE FIND THAT THE ASSESS EE WAS DRIVING INCOME FROM HOUSE PROPERTY, BUSINESS INCOME AND INTEREST, ETC. THE ASSESSEE DECLARED INCOME OF RS.3 4,15,476/-. WHILE FRAMING THE ASSESSMENT U/S 143(3) OF THE ACT, THE ASSESSING OFFICER MADE ADDITION OF THE INCOME RECEI VED AS A RENT WHICH INCLUDES SERVICE TAX. THERE IS NO DISPU TE TO THE FACT THAT THE SERVICE TAX WHICH WAS COLLECTED BY TH E ASSESSEE WAS DEPOSITED WITH THE STATE EXCHEQUER, THUS, THAT PORTION OF THE SERVICE TAX NEVER REMAINED WITH THE ASSESSEE AS THE SAME WAS COLLECTED ON BEHALF OF THE GOVERNMENT AS WAS DE POSITED. THE RENT WAS RECEIVED AS PER THE TERMS AND CONDITIO NS OF THE AGREEMENT AS PER WHICH THE ASSESSEE WAS TO DEPOSIT THE SERVICE TAX SO COLLECTED WITH THE GOVERNMENT. WE H AVE PERUSED THE AGREEMENT (PAGES-16 TO 30 OF THE PAPER BOOK) AND SHRI GYANDEV SADH 3 PROOF OF DEPOSIT OF SERVICE TAX WITH THE GOVERNMENT (PAGES 32 TO 35 OF THE PAPER BOOK), THUS, THE SERVICE TAX PAI D BY THE ASSESSEE AFTER COLLECTING AS A AGENCY OF THE GOVERN MENT CANNOT BE SAID TO BE INCOME OF THE ASSESSEE. THE ASSESSEE PAID THE AMOUNT OF RS.8,49,684/- (RS.2,13,240 ON 05/03/2008, RS.2,50,294/- ON 31/03/2008, RS.2,87,330/- AND 98, 820/- ON 07/12/2007). THE CBDT CIRCULAR NO.4/2008 DATED 28/04/2008 EXPLAINING THAT SERVICE TAX PAID BY THE TENANT DOES NOT PART TAKE THE NATURE OF THE INCOME OF LAND LORD AS THE LANDLORD MERELY ACTS AS A COLLECTING AGENCY OF THE GOVERNMENT SUPPORTS THE CASE OF THE ASSESSEE. THE DECISION OF THE CUSTOM EXCISE AND GOLD TRIBUNAL, CALCUTTA IN COMMISSIONER OF CENTRAL EXCISE VS ADVANTAGE MEDIA CONSULTANT (2008) 10 STR 449 ORDER DATED 09/03/2008 SUPPORTS THE CASE OF THE ASSESSEE. IN VIEW OF THESE UNDISPUTED FACTS, THIS GROUND OF THE ASSESSEE IS ALLOWED. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 18/05/2015. SD/- SD/- ( N.K. BILLAIYA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ( ) MUMBAI; , DATED : 18/05/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. -./0 / THE APPELLANT 2. 12/0 / THE RESPONDENT. SHRI GYANDEV SADH 4 3. 3 3 ( 4& ( -. ) / THE CIT, MUMBAI. P4. 3 3 ( 4& / CIT(A)- , MUMBAI 5. 6'7 1&# , 3 -.+ -#8 , ( ) / DR, ITAT, MUMBAI 6. 9$ :) / GUARD FILE. / BY ORDER, 26.& 1& //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( ) / ITAT, MUMBAI