ITA NO. 242/KOL/2020 ASS ESSMENT YEAR: 2008-2009 & ITA NO. 186/KOL/2020 ASS ESSMENT YEAR: 2011-2012 E.C. BOSE & CO. (P) LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT & SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 242/KOL/2020 ASSESSMENT YEAR: 2008-2009 & I.T.A. NO. 186/KOL/2020 ASSESSMENT YEAR: 2011-2012 E.C. BOSE & CO. (P) LIMITED,....................... ......................................APPELLANT 13A, ST. GEORGE TERRACE, KOLKATA-700022 [PAN: AABCE1567C] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ................RESPONDENT CIRCLE-11, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 APPEARANCES BY: SHRI SOUMITRA CHOWDHURY, ADVOCATE, FOR THE APPELLAN T SHRI VIJAY SHANKAR, CIT AND SHRI DHRUBAJYOTI ROY, J CIT, FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : JULY 01, 2020 DATE OF PRONOUNCING THE ORDER : JULY 01, 2020 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT :- THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST A COMMON ORDER PASSED BY THE LD. COMMISSIONER OF INC OME TAX (APPEALS)- 4, KOLKATA DATED 16.02.2018 FOR ASSESSMENT YEARS 20 08-09 AND 2011-12. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF PROVIDING PORT RELATED SERVICES, SU CH AS STEVEDORING, CARGO HANDLING, CONTAINER DOCUMENTATION, INTER-PORT TRANSACTION, ETC. THE RETURNS OF INCOME FOR THE YEARS UNDER CONSIDERA TION WERE FILED BY IT ITA NO. 242/KOL/2020 ASS ESSMENT YEAR: 2008-2009 & ITA NO. 186/KOL/2020 ASS ESSMENT YEAR: 2011-2012 E.C. BOSE & CO. (P) LIMITED 2 ON 26.09.2008 AND 30.09.2011 DECLARING TOTAL INCOME OF RS.5,74,288/- AND RS.15,49,290/- FOR A.Y. 2008-09 AND 2011-12 RES PECTIVELY. THE SAID RETURNS WERE INITIALLY PROCESSED BY THE ASSESSING O FFICER UNDER SECTION 147/143(3) OF THE INCOME TAX ACT, 1961. THE ASSESSM ENTS, HOWEVER, WERE SUBSEQUENTLY REOPENED BY HIM ON THE BASIS OF INFORM ATION RECEIVED THAT THE ASSESSEE-COMPANY DURING THE YEARS UNDER CONSIDE RATION HAD COLLECTED SERVICE TAX AND CESS AMOUNTING TO RS.47,06,680/- AN D RS.50,85,585/- FOR A.Y. 2008-09 AND 2011-12 RESPECTIVELY BUT THE SAME WAS NOT DEPOSITED TO THE GOVERNMENT EXCHEQUER. HE ACCORDINGLY ISSUED NOT ICES UNDER SECTION 148 AFTER RECORDING THE REASONS. IN REPLY, A LETTER WAS FILED BY THE ASSESSEE STATING THAT THE RETURNS ORIGINALLY FILED BY IT FOR BOTH THE YEARS UNDER CONSIDERATION MAY BE TREATED AS THE RETURNS F ILED BY THE ASSESSEE IN RESPONSE TO THE NOTICES UNDER SECTION 148. THEREAFT ER ASSESSMENTS WERE COMPLETED BY THE ASSESSING OFFICER UNDER SECTION 14 7/143(3) OF THE ACT VIDE ORDERS DATED 28.03.2014 AND 31.03.2014 FOR A.Y S. 2008-09 AND 2011- 12 RESPECTIVELY, WHEREIN THE AMOUNTS OF RS.47,06,68 0/- AND RS.50,85,585/- COLLECTED BY THE ASSESSEE TOWARDS SE RVICE TAX AND CESS BUT NOT PAID TO THE GOVERNMENT EXCHEQUER WERE DISALLOWE D BY HIM BY INVOKING THE PROVISIONS OF SECTION 43B. 3. AGAINST THE ORDERS PASSED BY THE ASSESSING OFFIC ER UNDER SECTION 147/143(3) FOR BOTH THE YEARS UNDER CONSIDERATION, APPEALS WERE PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEAL S) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSES SEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEALS FOR HEARING F ROM TIME TO TIME, THE LD. CIT(APPEALS) PROCEEDED TO DISPOSE OF THE APPEAL S OF THE ASSESSEE VIDE A COMMON APPELLATE ORDER DATED 16.02.2018 PASSED EX -PARTE. IN THE SAID ORDER, HE HELD BY RELYING ON THE DECISION OF THE HO NBLE DELHI HIGH COURT IN THE CASE OF CIT VS.- NOBLE & HEWITT (INDIA) (P) LIMITED (305 ITR 324) THAT THE DISALLOWANCE UNDER SECTION 43B COULD BE MA DE ONLY IF THE SERVICE TAX COLLECTION HAD BEEN ROUTED BY THE ASSESSEE-COMP ANY THROUGH ITS PROFIT ITA NO. 242/KOL/2020 ASS ESSMENT YEAR: 2008-2009 & ITA NO. 186/KOL/2020 ASS ESSMENT YEAR: 2011-2012 E.C. BOSE & CO. (P) LIMITED 3 & LOSS ACCOUNT. HE ACCORDINGLY DIRECTED THE ASSESSI NG OFFICER TO VERIFY THE FACTUAL POSITION IN THIS REGARD AND ALLOWED APP ROPRIATE RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APP EALS), THE ASSESSEE HAS PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS SUBMITTED THAT EVEN THOUGH THE DECISION OF THE LD. CIT(APPEALS) IN HOLDING THAT THE DISALLOWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 43B IN BOTH THE YEARS UNDER CONSIDERATION W AS NOT SUSTAINABLE IF THE SERVICE TAX COLLECTED BY THE ASSESSEE-COMPANY H AD NOT BEEN ROUTED THROUGH ITS PROFIT & LOSS ACCOUNT, WAS DULY SUPPORT ED BY THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF NOBLE & HEWITT (INDIA) (P) LIMITED (SUPRA), HE WAS NOT JUSTIFIED TO SET ASIDE THE MATTER FOR VERIFICATION AS HE WAS NO MORE HAVING SUCH POWER TO SET ASIDE THE MATTER TO THE ASSESSING OFFICER. HE HAS SUBMITTED THAT THE ASSESSING OFFICER, THEREFORE, HAS NOT COMPLIED WITH THE DIRECTION GIVE N BY THE LD. CIT(APPEALS) WHILE SETTING ASIDE THE ISSUE UNDER CO NSIDERATION TO THE ASSESSING OFFICER VIDE HIS IMPUGNED ORDER AND URGED THAT SUCH DIRECTION MAY BE GIVEN BY THE TRIBUNAL SO THAT THE ASSESSING OFFICER WILL BE ABLE TO CARRY OUT THE NECESSARY VERIFICATION AND DECIDE THE ISSUE UNDER CONSIDERATION. KEEPING IN VIEW ALL THE FACTS OF THE CASE AS WELL AS THE RELEVANT PROVISIONS OF THE ACT, WE ARE INCLINED TO ACCEPT THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. EVEN THE LD. D.R. HAS NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE ASSESS ING OFFICER FOR THE NECESSARY VERIFICATION. WE ACCORDINGLY RESTORE THE COMMON SOLITARY ISSUE INVOLVED IN BOTH THESE APPEALS OF THE ASSESSEE RELA TING TO DISALLOWANCE UNDER SECTION 43B TO THE FILE OF THE ASSESSING OFFI CER WITH A DIRECTION TO VERIFY AS TO WHETHER THE SERVICE TAX COLLECTION HAD BEEN ROUTED BY THE ASSESSEE-COMPANY THROUGH ITS PROFIT & LOSS ACCOUNT AND ACCORDINGLY ALLOW APPROPRIATE RELIEF TO THE ASSESSEE ON THE ISS UE KEEPING IN VIEW THE ITA NO. 242/KOL/2020 ASS ESSMENT YEAR: 2008-2009 & ITA NO. 186/KOL/2020 ASS ESSMENT YEAR: 2011-2012 E.C. BOSE & CO. (P) LIMITED 4 DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS.- NOBLE & HEWITT (INDIA) (P) LIMITED (SUPRA). 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 01, 2020 . SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VIC E-PRESIDENT) KOLKATA, THE 1 ST DAY OF JULY, 2020 COPIES TO : (1) E.C. BOSE & CO. (P) LIMITED, 13A, ST. GEORGE TERRACE, KOLKATA-700022 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-11, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-4, K OLKATA; (4) COMMISSIONER OF INCOME TAX- , KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.