The ITO, Ward-9(2), Ahmedabad V. M/s. Shri Gajanand Labour Contractor, Ahmedabad

ITA 2442/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85809 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 26-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: N C AMIN AR
• Section: 43B; 143(3)

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ ITA NO. 2442/AHD/2011 / ASSESSMENT YEAR: 2008-09 THE I.T.O., WARD 9 (1), AHMEDABAD VS M/S. SHRI GAJANAND LABOUR CONTRACTOR, AT:- MODASAR, SANAND BAVLA ROAD, SANAND, AHMEDABAD PAN : AAXFS 7607 N / // / (APPELLANT) / // / (RESPONDENT) REVENUE BY : SHRI M.K. SINGH, SR. DR. ASSESSEE(S) BY : SHRI N. C. AMIN, AR !' # $%&/ // / DATE OF HEARING : 26/02/2015 '( # $%& /DATE OF PRONOUNCEMENT: 13/03/2015 )* )* )* )*/ // / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE REVENUE IS AGAINST THE O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XV, AHMEDABAD DATED 07.07.2011 FOR ASSESSMENT YEAR 2008-09. 2. THE BRIEF FACTS OF THE CASE, AS CULLED OUT FROM THE RECORDS ARE AS UNDER:- 3. THE ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF SUPPLY OF MANPOWER. THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 ON 29.09.2008, SHOWING TOTA L INCOME OF RS. NIL AFTER ADJUSTING THE BROUGHT FORWARD LOSSES. THE CAS E WAS SELECTED FOR SCRUTINY AND THEREAFTER, THE ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT ITA NO. 2442/AHD/ 2011 SHRI GAJANAND LABOUR CONTRACTOR AY 2008-09 - 2 - VIDE ORDER DATED 30.11.2010 AND THE TOTAL INCOME, B EFORE SET OFF OF BROUGHT FORWARD LOSSES, WAS DETERMINED AT RS 14,87,178/-. A GGRIEVED BY THE ORDER OF ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATT ER BEFORE THE LD CIT(A) WHO VIDE ORDER DATED 07.07.2011 GRANTED PARTIAL REL IEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF THE LD CIT(A), THE REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUN DS:- 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.14,27,603/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF OUTSTANDING SER VICE TAX LIABILITY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. COMMISSIONER OF INCOME- TAX (APPEALS)-XV, AHMEDABAD MAY BE SET-ASIDE AND TH AT OF THE ASSESSING OFFICER BE RESTORED. 4. THE ONLY ISSUE IS WITH RESPECT TO DELETION OF AD DITION ON ACCOUNT OF OUTSTANDING SERVICE TAX. DURING THE COURSE OF ASSES SMENT PROCEEDINGS, ON PERUSING THE BALANCE-SHEET, THE ASSESSING OFFICER N OTICED THAT THE ASSESSEE HAD SHOWN SERVICE TAX PAYABLE OF RS.14,27,603/- AND WAS PAID AFTER DUE DATE OF FILING OF RETURN OF INCOME. THE ASSESSING O FFICER WAS OF THE VIEW THAT IN VIEW OF THE PROVISIONS OF SECTION 43B, SINC E THE AMOUNT HAS NOT BEEN PAID INTO THE GOVERNMENT ACCOUNT BEFORE THE DUE DAT E OF FILING THE RETURN OF INCOME, THE UNPAID SERVICE TAX IS ASSESSABLE AS INCOME IN THE HANDS OF THE ASSESSEE. HE, ACCORDINGLY, ADDED THE OUTSTANDING SE RVICE TAX LIABILITY OF RS.14,27,603/- AS INCOME OF THE ASSESSEE. 5. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO DELETED THE AD DITION BY HOLDING AS UNDER:- ITA NO. 2442/AHD/ 2011 SHRI GAJANAND LABOUR CONTRACTOR AY 2008-09 - 3 - 7. GROUND N.7 STATES THAT THE SERVICE TAX PAYABLE OF RS.14,27,603 HAS NOT BEEN CLAIMED AS EXPENDITURE IN P&L ACCOUNT. PERUSA L OF THE ASSESSMENT ORDER SHOWS THAT THE AO PRESUMED THAT THE APPELLANT HAS CLAIMED DEDUCTION OF THIS AMOUNT THOUGH THE APPELLANT HAS SHOWN THIS AMOUNT IN THE BALANCE SHEET AS OUTSTANDING. THE LD. AR CITED THE P&L ACCO UNT WHERE NO SUCH DEDUCTION HAD BEEN CLAIMED ON ACCOUNT OF SERVICE TA X PAID OR PAYABLE. AS THE APPELLANT HAS NOT CLAIMED ANY DEDUCTION OF SERVICE TAX IN MY VIEW THERE IS NO RATIONALE OF MAKING THE ADDITION. THE AO IS DIRE CTED TO DELETE THE ADDITION. 6. AGGRIEVED BY THE AFORESAID ORDER OF THE LD. CIT( A), THE REVENUE IS NOW IN APPEAL BEFORE US. BEFORE US, LD. DEPARTMENTA L REPRESENTATIVE SUPPORTED THE ORDER OF THE ASSESSING OFFICER. ON T HE OTHER HAND, LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE SERVIC E TAX IS NOT DEBITED TO THE PROFIT AND LOSS ACCOUNT AND THE ASSESSEE HAS NO T CLAIMED ANY DEDUCTION AND THEREFORE, THERE WAS NO QUESTION OF MAKING ANY DISALLOWANCE U/S 43B OF THE INCOME-TAX ACT. HE ALSO PLACED ON RECORD A C OPY OF THE BALANCE-SHEET. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE US, IT IS ASSESSEES S UBMISSION THAT THE SERVICE TAX PAYABLE OF RS.14,27,603/- WHICH IS SHOWN IN THE BALANCE-SHEET AS ON 31 ST MARCH 2008, HAS NOT BEEN CLAIMED AS AN EXPENDITURE. BEFORE US, ON A QUERY RAISED BY THE BENCH, THE LD. AR COULD NOT SATISFACT ORILY GIVE THE BREAK-UP OF THE SERVICE TAX PAYABLE AS TO WHETHER IT PERTAINED TO THE YEAR UNDER CONSIDERATION OR WAS OF EARLIER PERIOD. FURTHER, HE COULD ALSO NOT DEMONSTRATE THE CORRESPONDING RECEIPTS, WHICH WERE REFLECTED IN THE PROFIT AND LOSS ACCOUNT, ON WHICH THE LIABILITY OF SERVICE TAX PAYABLE WAS SHOWN BY THE ASSESSEE. THE MAJOR AMOUNTS IN THE PROFIT & LOSS ACCOUNT FOR THE YEAR ENDED 31.03.2008 ARE SAID TO BE ON ACCOUNT OF REIMBURSEMENTS OF VARIOUS EXPENSES AND THE INCOME FROM SERVICE CHARGE S IS STATED TO BE OF ONLY RS.2.76 LACS. FURTHER THERE IS NO FINDING BY C IT(A) THAT WHETHER THE ITA NO. 2442/AHD/ 2011 SHRI GAJANAND LABOUR CONTRACTOR AY 2008-09 - 4 - AMOUNT WAS CLAIMED AS AN EXPENDITURE IN EARLIER YEA RS. IN VIEW OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT THE ISSUE NEEDS TO BE RE-EXAMINED AT THE END OF THE ASSESSING OFFICER. WE, THEREFORE, R EMIT THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH IN VIEW OF THE FOREGOING & IN ACCORDANCE WITH LAW AND AFTER CONSIDERING THE SU BMISSIONS OF THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FURNISH ALL THE REQUIRED INFORMATION CALLED FOR BY THE ASSESSING OFFICER PRO MPTLY. NEEDLESS TO STATE THAT THAT THE ASSESSING OFFICER SHALL GRANT ADEQUAT E OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THIS GROUND OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE COURT ON 13 TH MARCH, 2015 AT AHMEDABAD. SD/- SD/- (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER (ANIL CHATURVEDI) ACCOUNTANT MEMBER AHMEDABAD; DATED 13/03/2015 *BIJU T, PS )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ !- / CONCERNED CIT 4. !- ( ) / THE CIT(A)-XV, AHMEDABAD 5. +01 $ , , / DR, ITAT, AHMEDABAD 6. 12 3' / GUARD FILE. )*! )*! )*! )*! / BY ORDER, //TRUE COPY// 4 44 4/ // / 5 5 5 5 (DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD