AICON, PUNE V. DCIT CIRCLE-7, PUNE

ITA 1875/PUN/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 1132 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 26-11-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Earning of tax free income; Benefit of exemption
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER ITA No.1875/PUN/2019 निर्धारण वषा / Assessment Year : 2013-14 ALCON 4 th Floor, Metropole, Bund Garden Road, Near Inox Theatre, Pune – 411001 PAN : AAIFA1665R Vs. DCIT, Circle 7, Pune Appellant Respondent आदेश / ORDER PER S.S. GODARA, JM : This assessee‟s appeal for AY 2013-14 arises against the CIT(A)-8, Pune‟s order dated 19-09-2019 passed in case No. PN/CIT(A)-8/DCIT, Cir.7, 7/29018-19/351 involving proceedings under Section 143(3) of the Income Tax Act, 1961, in short „the Act‟. Case called twice. None appears at the assessee‟s behest. The very factual position has continued on the last two hearings as well. We accordingly proceed ex-parte against the assessee. Assessee by None Revenue by Shri S.P. Walimbe Date of hearing 27-06-2022 Date of pronouncement -06-2022 ITA No.1875/PUN/2019 ALCON 2 2. The assessee pleads the following substantive grounds in the instant appeal: 1. The learned authorities below erred in confirming addition of Rs.63,46,307/- on account of VAT paid by the assessee without collecting it from customers, which relates to eligible housing projects u/s.80IB(10) which were completed prior to the year under assessment without appreciating that the said deduction is allowable on payment basis u/s.43B and the inter source set off has to be allowed u/s. Section 70 before considering deductions under chapter VI-A. It is submitted that no disallowance was justified and the same may kindly be deleted. 2. The learned AO erred in disallowing a sum of Rs.4,45,473/- on account of the deduction claimed by assessee for service tax paid under reverse charge mechanism for Goods Transport Agency services without appreciating that the said deduction is allowable on payment basis u/s.43B and the inter source. Set off has to be allowed u/s. Section 70 before considering deductions under chapter VI-A. It is submitted that no disallowance was justified and the same may kindly be deleted. 3. Mr. S.P. Walimbe took us to the CIT(A)‟s detailed discussion on both these issues reading as follows: “6.3. DECISION:- The observations of the AO, submissions of the appellant and the material on record have been considered. 6.4. Relevant facts of the case are the appellant had claimed Rs. 67,91,780/- as deduction for taxes paid for three project which were eligible for exemption u/s 80IB(10) of the Act. The appellant has availed exemption u/s 80IB(10) of the act, for above all three said project in the respective year. 6.5. The appellant further submitted that the matter was in appeal before the Hon'ble High Court regarding the amendment brought by the Maharashtra Govt. in Section 2(24) of the MVAT Act, in year 2002. The amendment brought the transfer of property in VAT purview, thus making accountable the appellant to collect & deposit the VAT from the flat buyers. The Hon'ble Bombay High court gave its verdict on 10.04.2012, in favor of the Maharashtra. Govt., and confirmed the levy of VAT. However, the said decision was challenged by a SLP in Supreme Court on 28.05.2012. The Honb'le Supreme court gave an interim relief to developers, through a stay on coercive process for recovery of taxes, on 28.08.2012. Later Hon’ble Supreme Court upheld the decision of Bombay high court thus making pay VAT on flat sold during June 2006 to Mar 2010. ITA No.1875/PUN/2019 ALCON 3 6.6 As can be seen the appellant has availed the exemption on income earned on all three said project u/s 80IB(10) of the Act. Now the appellant claimed the deduction of Taxes paid on actual basis u/s 43B of the Act. However, the same cannot be accepted. The appellant has shown taxes paid against the taxable income of the AY 2013-14, whereas the taxes paid was pertains to earlier year where the appellant had shown exempted income. If the appellant would have shown taxes paid in respective year the exempted income would have been less. Now the appellant has shown the vat paid on actual basis and claim against the taxable income which makes the taxable income less for the instant AY. The appellant is trying to take wrong advantage of the provisions of the Act, as the appellant has availed the benefit of exemption of u/s 80IB(10) of the Act, and now again showing less taxable income by deducting taxes payable in earlier years. Under such circumstances, suppose the appellant earned exempted income of say 3 crore on those 3 project, then he should feel that he earned exempt income of only Rs.2,32,08,220/- (Rs 3,00,00,000 - Rs 67,91,780/-). Expenses against the income which was exempt, cannot be allowed against taxable income in current year. Therefore it is held that that the AO has rightly disallowed the taxes paid by the appellant in the year under consideration, accordingly Ground No. 1 & 2 is hereby DISMISSED.” 4. No rebuttal on law and facts has come from the assessee‟s side in the case records. We, thus, find no reason to reverse the CIT(A)‟s action affirming the assessment findings under challenge. The same stand confirmed. 5. This assessee‟s appeal is dismissed in above terms. Order pronounced in the Open Court on 30 th June, 2022. Sd/- Sd/- (DIPAK P. RIPOTE) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER प ु णे Pune; ददिधांक Dated : 30 th June, 2022 GCVSR ITA No.1875/PUN/2019 ALCON 4 आदेश की प्रतिलिपि अग्रेपिि/Copy of the Order is forwarded to: 1. अपीऱधर्थी / The Appellant; 2. प्रत्यर्थी / The Respondent; 3. The CIT(A)-8, Pune 4. 5. The Pr.CIT-4, Pune विभागीय प्रविविवि, आयकर अपीलीय अविकरण, पुणे “A” / DR „A‟, ITAT, Pune 6. गार्ड फाईल / Guard file आदेशान ु सार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अविकरण ,पुणे / ITAT, Pune Date 1. Draft dictated on 27-06-2022 Sr.PS 2. Draft placed before author 28-06-2022 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order.