Shri Alpesh B. Patel, Anand V. The Income Tax Officer, Ward-2, Anand

ITA 2680/AHD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94856 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 07-12-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 22-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC-A BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO.2680/AHD/2015 (ASSESSMENT YEAR:2009-10) SHRI ALPESH B. PATEL PROP. SHRADDHA CONSTRUCTION, MARGADADA NI KHADKI, AT. CHIKHODRA, DIST. ANAND - 388320 APPELLANT VS. INCOME TAX OFFICER, WARD-2, ANAND RESPONDENT PAN: AGZPP4854C /BY APPELLANT : SMT. ARTI SHAH, A.R. /BY RESPONDENT : SHRI JAMES KURIAN, SR. D.R. /DATE OF HEARING : 07.12.2015 /DATE OF PRONOUNCEMENT : 09.12.2015 ORDER PER RAJESH KUMAR, A.M: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-4, VADODARA, DATED 15.06.2015 FOR A.Y. 2009-10 ON FOLL OWING GROUND: 1. THE LEARNED COMMISSIONER OF INCOME TAX, (APPEALS)-4, VADODARA HAS ERRED IN CONFIRMING THE DISALLOWANCE OF PAYMENT OF SERVICE TAX OF RS.6,62,751/- MADE BY THE ASSESSING OFFICER. 2 ITA NO.2680 AHD 2015 (SHRI ALPESH B. PATEL VS. ITO ) 2. THE SOLE GROUND RAISED BY THE ASSESSEE IS AGAINS T THE CONFIRMATION OF DISALLOWANCE OF SERVICE TAX OF RS.6,62,751/-. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED ITS RETURN OF INCOME ON 25.09.2009 DECLARING TOTAL INCOME OF RS.4 ,80,640/-. THE ASSESSEE CHARGED TO HIS P&L ACCOUNT SERVICE TAX OF RS.5,39,4 45/- AND INTEREST ON SERVICE TAX OF RS.1,23,306/- AGGREGATING TO RS.6,62 ,751/-. THE LD. A.O. DURING COURSE OF ASSESSMENT PROCEEDING OBSERVED THA T THE SAID EXPENSES PERTAINED TO F.Y. 2006-07 & 07-08 AND WERE WRONGLY CLAIMED IN THE A.Y. 2009-10. THUS, ASSESSING OFFICER ISSUED SHOW CAUSE NOTICE TO ASSESSEE ON 24.12.2014, WHICH WAS NOT REPLIED BY THE ASSESSEE A ND THEREFORE, THE LD. A.O. FRAMED THE ASSESSMENT AT RS.12,61,962/- BY DISALLOW ING RS.6,62,751/- VIDE ORDER DATED 19.01.2015. 4. THE LD. CIT(A) ALSO CONFIRMED THE ADDITION BY HO LDING THAT THE ASSESSING OFFICER HAD RIGHTLY DISALLOWED THE PRIOR PERIOD EXPENSES ON ACCOUNT OF SERVICE TAX AND INTEREST THEREON. THE L D. CIT(A) OBSERVED THAT ASSESSEE HAD INCLUDED SERVICE TAX AS A PART OF HIS TURNOVER AND LATER ON, CLAIMED DEDUCTION OF THE AMOUNT PAID ON ACCOUNT OF SERVICE TAX IN THE P&L ACCOUNT AND SINCE THE SERVICE TAX IS NOT ASSESSEES LIABILITY AND THEREFORE, PROVISION OF SECTION 145A DID NOT APPLY TO THE SERV ICE TAX AS HELD BY THE HONBLE MUMBAI ITAT IN PHARMA SEARCH VS. ACIT (2012 ) 21 TAXMANN.COM 44 (MUM.) AND THE SERVICE TAX IS NOT COVERED BY THE PROVISION OF 43B ON PAYMENT BASIS. 5. THE LD. A.R. SUBMITTED BEFORE US THAT THE SERVIC E TAX AND INTEREST THEREON PERTAINED TO CURRENT YEAR. THE LD. COUNSEL ALSO FILED A COPY OF THE P&L ACCOUNT WHICH SHOWED SERVICE TAX OF RS.5,39,445 /- AND INTEREST ON SERVICE TAX OF RS.1,23,306/- AS CHARGED TO THE P&L ACCOUNT. THE COPIES OF LEDGER ACCOUNTS IN RESPECT OF SERVICE TAX AND INTER EST ON SERVICE TAX ALONG 3 ITA NO.2680 AHD 2015 (SHRI ALPESH B. PATEL VS. ITO ) WITH CHALLANS FOR PAYMENTS OF SERVICE TAX WERE FILE D BEFORE US AND THE LD. COUNSEL SUBMITTED THAT THE SAME MAY KINDLY BE ALLOW ED TO THE ASSESSEE. ON THE OTHER HAND, LD. D.R. RELIED ON THE ORDERS OF AU THORITIES BELOW. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND FROM THE P&L ACCOUNT THAT SERVICE TAX OF RS.5,39,445/- AND INTEREST ON SERVICE TAX OF RS.1,23,306/- WERE CHARG ED TO THE P&L ACCOUNT. IT IS ALSO SEEN FROM THE CHALLANS IN RESPECT OF PAYMEN T OF SERVICE TAX THAT THE PAYMENTS RELATES TO CURRENT YEAR. THUS, WE ARE OF THE OPINION THAT THESE COPIES OF FINAL ACCOUNT OF THE ASSESSEE WITH COPY O F LEDGER ACCOUNTS AND CHALLANS REQUIRE VERIFICATION. IN OUR CONSIDERED V IEW, IF THE AMOUNT OF SERVICE TAX AND INTEREST THEREON RELATES TO THE CURRENT FIN ANCIAL YEAR UNDER CONSIDERATION, THE ASSESSEE IS ENTITLED FOR THE DED UCTION OF THE SAME AS THE SERVICE TAX COLLECTED WAS INCLUDED IN THE RECEIPTS FROM THE CONSTRUCTION WORK WHICH WAS SHOWN ON THE INCOME SIDE OF P&L ACCOUNT. WE, THEREFORE, SET ASIDE THE ISSUE TO THE FILE OF ASSESSING OFFICER WI TH THE DIRECTION TO VERIFY THE SERVICE TAX AND INTEREST THEREON AND ALLOW THE DEDU CTION ACCORDINGLY. THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ASSESSI NG OFFICER IS DIRECTED ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. PRONOUNCED IN THE OPEN COURT ON THIS THE 09 TH DAY OF DECEMBER, 2015. SD/- SD/- (SHAILENDRA KUMAR YADAV) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 09/12/2015 TRUE COPY S K SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 4 ITA NO.2680 AHD 2015 (SHRI ALPESH B. PATEL VS. ITO ) 2 / ASSESSEE $ %&%'( ) / CONCERNED CIT 4 )- / CIT (A) , -./ 00'(1 '( 1 23& / DR, ITAT, AHMEDABAD 4 /56 78 / GUARD FILE. BY ORDER / 1 / 2 % '( 1 23&