ITO 25(3)(1), MUMBAI V. GANPATI J. NAYAK, MUMBAI

ITA 4098/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48946 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 20-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T T JACOB
• Section: 43B; 143(3); 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND R.K.PANDA (A.M ) ITA NO.4098/MUM/2010 (ASSESSMENT YEAR: 2007-08) INCOME TAX OFFICER 25(3)(1), ROOM NO.307, 3 RD FLOOR, BLDG. C-11, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA(E), MUMBAI-400051. SHRI GANAPATI J.NAYAK, PLOT NO.230, GROUND FLOOR, ANANT RAVI HSG.SOC., RDP SECTOR-5, CHARKOP, KANDIVALI (WEST), MUMBAI-400067 PAN:AAAPN5563L APPELLANT V/S RESPONDENT APPELLANT BY : SHRI T.T.J ACOB RESPONDENT BY : NONE. O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 22.2.2010 PASSED BY THE LE ARNED COMMISSIONER OF INCOME TAX(A) FOR THE ASSESSMENT YE AR 2007-08. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE A SSESSEE, AN INDIVIDUAL IS ENGAGED IN THE BUSINESS OF PROVIDI NG HOUSE KEEPING AND PEST CONTROL SERVICES, FILED RETURN DE CLARING TOTAL INCOME AT RS.9,89,072/-. DURING THE COURSE OF ASSE SSMENT IT WAS INTERALIA OBSERVED BY THE AO THAT ON PERUSAL OF BALANCESHEET AS ON 31.3.2007, THE ASSESSEE HAS SHO WN ITA NO.4098/MUM/2010 (ASSESSMENT YEAR: 2007-08) 2 SERVICE TAX PAYABLE RS.33,91,835/- AND OUT OF THE S AME, THE ASSESSEE HAS REMITTED ONLY RS.19,20,794/- INTO GOV ERNMENT ACCOUNT AND BALANCE AMOUNT WAS NOT PAID TILL THE D ATE OF FILING OF THE RETURN AND ACCORDINGLY HE DISALLOWED RS.14,71,041/- UNDER SECTION 43B OF THE INCOME TAX ACT, 1961 (THE ACT). THE AO AFTER MAKING THE SOME OTHE R DISALLOWANCES COMPLETED THE ASSESSMENT AT AN INCOME OF RS.37,94,120/- VIDE ORDER DATED 11.12.2009 PASSED U NDER SECTION 143(3) OF THE ACT. ON APPEAL, THE LEARNE D COMMISSIONER OF INCOME TAX(A), FOLLOWING THE DECISI ON OF CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF A CIT V/S REAL IMAGE MEDIA TECHNOLOGIES (P) LTD (2008) (114 I TD 573)(CHENNAI), HOWEVER, DELETED THE ADDITION MADE BY THE AO. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A), THE REVENUE IS IN A PPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE DELETI ON OF ADDITION OF RS.14,71,041/- MADE BY THE AO UNDER S ECTION 43B OF THE ACT. 4. AT THE TIME OF HEARING, THE LEARNED D.R. SUPPORT S THE ORDER OF THE AO. ITA NO.4098/MUM/2010 (ASSESSMENT YEAR: 2007-08) 3 5. WE HAVE CAREFULLY HEARD THE SUBMISSIONS OF THE LEARNED D.R. AND PERUSED THE MATERIAL AVAILABLE O N RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE. WE FURT HER FIND THAT THE SERVICE TAX WAS PAYABLE ON 31.3.2007 WAS AGAINS T THE UNREALIZED DEBTORS OF RS.1,21,38,882/- AND AS THE ASSESSEE HAD NOT RECEIVED THE SAID AMOUNT, THE ASSESSEE WAS NOT LIABLE TO PAY SERVICE TAX AS ON 31.3.2007. 6. IN REAL IMAGE MEDIA TECHNOLOGIES (P) LTD (SUPRA ), IT HAS BEEN HELD THAT SINCE SERVICE TAX WAS NOT PAYABL E BY THE ASSESSEE, THE RIGOUR OF SECTION 43B COULD NOT HAVE BEEN APPLIED TO THE ASSESSEES CASE AND HENCE THE TRIBU NAL HAS CONFIRMED THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A) IN DELETING THE ADDITION MADE BY THE AO. 7. IN THE ABSENCE OF ANY DISTINGUISHING FEATURES BR OUGHT ON RECORD BY THE REVENUE, WE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL (SUPRA) HOLD THAT SINCE THE SERVIC E TAX WAS NOT PAYABLE BY THE ASSESSEE, THE AO WAS NOT JUSTIFI ED IN APPLYING THE PROVISIONS OF SECTION 43B OF THE ACT AND ACCORDINGLY, WE ARE INCLINED TO UPHOLD THE ORDER O F THE LEARNED COMMISSIONER OF INCOME TAX (A) IN DELETIN G THE ADDITION OF RS.14,71,04L/- MADE BY THE AO UNDER SEC TION 43B OF THE ACT. THE GROUNDS TAKEN BY THE REVENUE ARE THEREFORE REJECTED. ITA NO.4098/MUM/2010 (ASSESSMENT YEAR: 2007-08) 4 8. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 27TH MAY,20 11 SD SD (R.K.PANDA) (D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 27 TH MAY, 2011 SRL:23511 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILED. TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI