THE ACIT, CIRCLE - 4(1), Visakhapatnam V. Reliable Stevedores Pvt., Visakhapatnam

ITA 282/VIZ/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8688 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 22-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T SATYANANDAM
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 282 / VIZ /201 4 (ASST. YEAR : 20 1 0 - 11 ) ACIT, CIRCLE - 4(1), VISAKHAPATNAM. V S . M/S. RELIABLE STEVEDORES PVT. LTD., D.NO. 14 - 37 - 19/3, G ROUND FLOOR - C, GOKHALE ROAD, MAHARANIPETA, VISAKHAPATNAM. PAN NO. AADCR 7426 B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SHRI T. SATYANANDAM SR. DR DATE OF HEARING : 08 / 0 3 /201 8 . DATE OF PRONOUNCEMENT : / 03 /201 8 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) , VISAKHAPATNAM , DATED 1 0 /0 3 /201 4 FOR THE ASSESSMENT YEAR 20 1 0 - 11 . 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF STEVEDORING, SHIPPING AND FORWARDING AGENCY , FILED ITS RETURN OF INCOME BY DECLAR ING TOTAL INCOME OF RS. 80,89,170/ - . THE RETURN FILED BY THE ASSESSEE WAS PROCESSED 2 ITA NO. 282/VIZ/2014 ( M/S. RELIABLE STEVEDORES PVT. LTD. ) UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT') . S UBSEQUENTLY CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT IS COMPLETED UNDER SECTION 143(3) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER HAS NOTED THAT ON VERIFICATION OF THE BALANCE SHEET AT SCHEDULE - 3 UNDER THE HEAD SE CURED LOANS, IT IS FOUND TH A T THE ASSESSEE HAS SHOWN SERVICE TAX PAYABLE AT RS. 78,94,719/ - INSTEAD OF SHOWING AS A CURRENT LIABILITY. HOWEVER, ON VERIFICATION OF THE DETAILS OF THE SAME, IT IS FOUND THAT THE ASSESSEE HAS COLLECTED THE SERVICE TAX AS PAR T OF SALES, BUT NOT PAID TO THE STATUTORY AUTHORITY. MORE OVER, THE ASSESSEE COLLECTED THE SERVICE TAX BUT NEITHER P AID TO THE STATUTORY AUTHORITY NOR INCLUDED IN THE GROSS RECEIPTS OF THE ASSESSEE , THEREFORE, SAME IS ADDED IN THE HANDS OF THE ASSESSEE. 3 . ON APPEAL BEFORE THE LD. CIT(A), IT WAS CONTENDED THAT THE ASSESSEE HAS NOT RECEIVED THE ENTIRE SERVICE TAX , SOME COMPONENT IS RECEIVABLE . HE RELIED ON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. NOBLE HEWITT (INDIA) (P) LTD . [3 05 ITR 324 (DEL.)] . THE LD. CIT(A) BY FOLLOWING THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE ABOVE REFERRED TO CASE , DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 3 ITA NO. 282/VIZ/2014 ( M/S. RELIABLE STEVEDORES PVT. LTD. ) 4 . ON BEING AGGRIEVED, REVENUE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL. 5. IN THIS CASE, AS PER THE ASSESSING OFFICER, THE ASSESSEE HAS TO PAY THE SERVICE TAX OF RS. 78,94,719/ - . THE CASE OF THE ASSESSEE IS THAT THE ENTIRE AMOUNT OF RS. 78,94,719/ - IS NOT COLLECTED, STILL THERE IS SOME RECEIVABLE. IT IS NOT CLEAR F ROM THE ASSESSMENT ORDER AND EVEN FROM THE LD. CIT(A)S ORDER THAT WHAT IS THE AMOUNT OF SERVICE TAX HAS BEEN COLLECTED BY THE ASSESSEE. WHEN BENCH IS ASKED, LD. C OUNSEL FOR THE ASSESSEE IS NOT ABLE TO ANSWER THE SAME AND ALSO NOT ABLE TO FILE THE DETAILS, BUT HE REQUESTED , ISSUE MAY BE REMITTED BACK TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION. 6 . LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER PASSED BY THE ASSESSING OFFICER. 7 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 8 . THE ISSUE INVOLVED IN THIS APPEAL IS IN RESPECT OF SERVICE TAX COLLECTED AND PAYABLE TO THE GOVERNMENT . THE CASE OF THE ASSESSING OFFICER IS THAT ASSESSEE HAS TO COLLECT THE SERVICE TAX AND PAYABLE TO THE GOVERNMENT OF RS. 78,94,719/ - . THE CASE OF THE ASSESSEE IS THAT HE HAS NOT COLLECTED THE ENTIRE AMOUNT AND SOME OF THE AMOUNT IS RECEIVABLE AND HE SUBMITTED THAT ASSESSEE 4 ITA NO. 282/VIZ/2014 ( M/S. RELIABLE STEVEDORES PVT. LTD. ) IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING AND THE SERVICE TAX COLLECTED IS NEITHER DEBITED TO THE PROFIT & LOSS ACCOUNT NO R CLAIMED AS DEDUCTION , T HEREFORE, NO SER V ICE TAX HAS TO BE PAID. WE CONSIDER THE ARGUMENTS OF THE ASSESSEE . WE NEED TO SEE THAT WHAT IS THE ACCOUNTING SYSTEM FOLLOWED BY THE ASSESSEE AND ALSO TO SEE THE PROFIT & LOSS ACCOUNT AND OTHER RELEVANT DETAILS. NO DETAILS ARE AVAILABLE BEFORE THE BENCH. LD . COUNSEL FOR THE ASSESSEE HAS EXPRESSED HIS INABILITY TO SUBSTANTIATE HIS CASE BEFORE THE TR IBUNAL. THEREFORE, BY CONSIDERING TH E R E QUEST MADE BY THE ASSESSEES COUNSEL, WE ARE OF THE OPINION THAT THE ISSUE HAS TO BE REMITTED BACK TO THE ASSESSING OFFICER TO CONSIDER AFRESH. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE ASSE SSING OFFICER TO CONSIDER THE RELEVANT DETAILS AND TO PASS AN ORDER DENOVO IN ACCORDANCE WITH LAW. 9. IN THE RESULT, APPEAL FILED BY THE R E V E N U E IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON TH IS 14 TH DAY OF MARCH , 201 8 . SD/ - SD/ - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14 TH MARCH , 201 8 . 5 ITA NO. 282/VIZ/2014 ( M/S. RELIABLE STEVEDORES PVT. LTD. ) VR/ - COPY TO: 1. THE ASSESSEE - M/S. RELIABLE STEVEDORES PVT. LTD., D.NO. 14 - 37 - 19/3, GROUND FLOOR - C, GOKHALE ROAD, MAHARANIPETA, VISAKHAPATNAM. 2. THE REVENUE ACIT, CIRCLE - 4(1), VISAKHAPATNAM. 3. THE CIT - 2, VISAKHAPATNAM. 4. THE CIT(A) , VISAKHAPATNAM. 5. THE D.R . , VISAKHAP ATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.