CLEAN COATS P. LTD, MUMBAI V. DCIT 10(1), MUMBAI

ITA 2359/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9273 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 24-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: KISHORE M RAJ ESHIRKE
• Section: 43B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . . !'# , $ %& BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI N.K. B ILLAIYA, AM ./I.T.A. NO.2359/MUM/2011 ( ' ' ' ' / ASSESSMENT YEAR: 2007-08 M/S. CLEAN COATS PVT. LTD., 101, METRO HOUSE, B-BLOCK METRO ESTATE, 178, CST ROAD, BEHIND MERCEDES BENZ SHOWROOM, SANTACRUZ (E), MUMBAI-400 098 / VS. THE DCIT 10(1), AAYAKAR BHAVAN, MUMBAI-400 020 &( $ ./ )* ./PAN/GIR NO.AABCC 1879P ( (+ /APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . / APPELLANT BY: SHRI KISHORE M. RAJESHIRKE ,-(+ / . / RESPONDENT BY SHRI RAKESH RANJAN / 01$ / DATE OF HEARING : 20.12.2012 23' / 01$ /DATE OF PRONOUNCEMENT :20.12.2012 %4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-21, MUMBAI DT.28.1.2011 PERTAINING TO A.Y. 2 007-08.THE ASSESSEE HAS CHALLENGED THE CORRECTNESS OF THE ORDE R OF THE LD. CIT(A) ON SUBSTANTIVELY TWO GROUNDS. ITA NO.2359/M/2011 2 2. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE STATED THAT HE IS NOT PRESSING GROUND NO. 2. GROUND NO. 2 IS ACCORD INGLY DISMISSED. 3. GROUND NO. 1 RELATES TO THE ADDITION OF RS. 5,46 ,035/- MADE BY THE AO ON ACCOUNT OF DISALLOWANCE U/S. 43B IN RESPECT O F OUTSTANDING DUTIES AND TAXES. 4. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT WH ILE SCRUTINIZING THE RETURN, DURING THE COURSE OF THE ASSESSMENT PROCEED INGS, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS SHOWN UNDER THE HEAD CURRENT LIABILITIES IN THE BALANCE SHEET AT RS. 72,84,025/ -. THE AO FURTHER FOUND THAT IN ANNEXURE 6 TO FORM NO. 3CD, THE DETAILS OF DUTIES /TAXES ETC. OF RS. 1,82,370/- ARE GIVEN WHICH HAVE BEEN PAID ON O R BEFORE THE DUE DATE FOR FILING OF RETURN. FOR THE BALANCE AMOUNT OF RS . 5,46,035/-, THE AO OBSERVED THAT NEITHER THE DETAILS OF DUTIES AND TAX ES ARE FURNISHED NOR THE SAID AMOUNT REPORTED IN ANNEXURE-6 OF FORM NO. 3CD. THAT BEING THE FACT OF THE MATTER, THE AO DISALLOWED THE AMOUNT OF RS. 5,46,035/- U/S. 43B OF THE ACT. 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) BUT WITHOUT ANY SUCCESS. 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE SAID DUTIES AND TAXES CONSISTS OF VAT AND SERVICE TAX CO LLECTED ON PROGRESS BILLS AND WHICH ARE NOT AN ACTUAL LIABILITY AT THE YEAR END. IT WAS FURTHER CONTENDED THAT THE DISALLOWANCE U/S. 43B COULD BE M ADE ONLY IN RESPECT OF ANY SUM DEBITED TO PROFIT AND LOSS ACCOUNT AND W HICH ARE FOUND TO BE OUTSTANDING AT THE YEAR END AND NOT PAID BEFORE THE DUE DATE. THE LD. COUNSEL FURTHER ARGUED THAT SINCE THE VAT ON PROGRE SS BILL WAS NEVER DEBITED TO THE PROFIT AND LOSS ACCOUNT, THEREFORE N O DISALLOWANCE U/S. 43B SHOULD BE MADE. ITA NO.2359/M/2011 3 7. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STATED THAT THESE LIABILITIES ARE FOUND TO BE OUTSTANDING AND THEREFO RE ARE PART OF DUTIES AND TAXES AND COVERED BY THE PROVISIONS OF SEC. 43B OF THE ACT. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IN OUR CONSIDERATE VIEW, THE SU BMISSIONS MADE BY THE LD. COUNSEL BEFORE US HAVE NOT BEEN PROPERLY CONSID ERED BY THE LOWER AUTHORITIES. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE BACK TO THE FILE OF THE AO. THE ASSESSE E IS DIRECTED TO FURNISH ALL THE NECESSARY DETAILS/DOCUMENTS BEFORE THE AO. THE AO IS DIRECTED TO EXAMINE THE DETAILS IN THE LIGHT OF THE PROVISIONS OF SEC. 43B AND DECIDE THE ISSUE AFRESH. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 5 06 50 / 7 8/ 9:; 4 &<0 / )0 =' ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 20.12.2012 %4 / 3' $ 7 >%6 20.12.2012 3 / ? SD/- SD/- (H.L. KARWA) (N.K. BILLAIYA) /PRESIDENT $ %& / ACCOUNTANT MEMBER MUMBAI; >% DATED . . ./ RJ , SR. PS ITA NO.2359/M/2011 4 %4 / ,0 @ '0 / COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. A ( ) / THE CIT(A)- 4. A / CIT 5. B? ,0 , , / DR, ITAT, MUMBAI 6. ?C D / GUARD FILE. %4 / BY ORDER, - 0 ,0 //TRUE COPY// 9 / = ) DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI