A.C.I.T.22(3), NAVI MUMBAI V. SAI FOOD SERVICES, NAVI MUMBAI

ITA 5485/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84038 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 22-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 30-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LAV KUMAR
• Assessee Lawyers: DR P DANIEL
• Keywords: Revised return
• Section: 2; 43B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI R.C.SHARMA , ACCOUNTANT MEMBER ITA NO.5485/MUM/2012 (A.Y.2009-10) THE ACIT 22(3), 3 RD FLOOR, TOWER NO.6, VASHI RAILY STN. COMPLEX, NAVI MUMBAI. (APPELLANT ) VS. M/S. SAI FOOD SERVICES, PLOT NO.A/255, TTC INDUSTRIAL AREA, MIDC, MAHAPE, NAVI MUMBAI 400 710. (RESPONDENT) APPELLANT BY : SHRI LAV KUMAR RESPONDENT BY : DR. P.DA NIEL DATE OF HEARING : 22/10/2014 DATE OF PRONOUNCEMENT : 22 /10/2014 ORDER PER I.P.BANSAL, J.M: THIS APPEAL IS FILED BY THE REVENUE AND IT IS DIREC TED AGAINST ORDER PASSED BY LD. CIT(A)-33 MUMBAI DATED 1/6/2012 FOR ASSESSMENT YEAR 2009- 10. GROUNDS OF APPEAL READ AS UNDER: 1.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION UNDER SECTION43B AMOUNTING TO RS .27,12,093/- EVEN THOUGH THE PAYMENT WAS MADE AFTER THE END OF F.Y. AND THE LIABILITIES PERTAINS TO F.Y. 2007-08. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE BENEFIT OF PROVISO TO SECTION 43B WHI CH IS ONLY MEANT FOR LIABILITIES PERTAINING TO PRECEDING YEAR FOR WHICH RETURN UNDER SECTION 139(1) IS DUE AND NOT IN RESPECT OF EARLIER YEARS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE ADDITIONAL GROUND OF APPEAL ALLOWING V AT PAYMENT UNDER ITA NO.5485/MUM/2012 (A.Y.2009-10) 2 SECTION43B OF RS.23,26,495/- IN CONTRAVENTION OF JU DGMENT OF GOETZE (INDIA) LTD. REPORTED IN 284 ITR 323 (SC). 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT C AME TO THE NOTICE OF THE AO THAT AN AMOUNT OF RS.47,50,528/- WAS CLAIMED BY THE ASSESSEE UNDER SECTION 43B OF THE ACT. THE SAID AMOUNT COMPRISES TWO LIABILITIES WHICH WERE A SUM OF RS.8,85,000 AND RS.38,65,528/- ON ACCOUNT OF VAT LIABILITY AND SERVICE TAX LIABILITY RESPECTIVELY. THE SAID LIABI LITY PERTAINS TO FINANCIAL YEAR 2007-08. IT WAS FURTHER NOTICED THAT TOTAL AMOUNT OF RS.47,50,528/- WAS NOT PAID IN FINANCIAL YEAR 2008-09 BUT ACTUAL PAYMENTS WERE MADE OF RS.20,38,435/- AND BALANCE AMOUNT OF RS.27,12,093/ - WAS ACTUALLY PAID IN FINANCIAL YEAR 2009-10. THE LIABILITY PERTAINS TO FINANCIAL YEAR 2007-08 AND AS THE SAME WAS NOT PAID WITHIN CURRENT FINANCIAL YEAR AND PAID IN FINANCIAL YEAR 2009-10, THEREFORE, AO DISALLOWED THE SAME AND AN A MOUNT OF RS.27,12,093/- WAS ADDED TO THE INCOME OF THE ASSESSEE. THE ADDIT ION WAS AGITATED IN THE APPEAL FILED BEFORE LD. CIT(A) WHO AFTER CONSIDERIN G THE PROVISIONS OF SECTION 43B HAS COME TO A CONCLUSION THAT IRRESPECTIVE OF T HE FACT THAT TO WHICH YEAR LIABILITY BELONGS, IF THE AMOUNT IS PAID BEFORE THE DUE DATE OF FILING THE RETURN THE SAME SHALL BE ALLOWABLE AND THE ADDITION WAS DE LETED BY LD. CIT(A). THE REVENUE IS AGGRIEVED, HENCE, HAS RAISED GROUND NO.1 & 2. 3. LD. DR RELYING UPON THE GROUNDS OF APPEAL SUBMIT TED THAT BENEFIT OF PROVISO CANNOT BE EXTENDED TO THE LIABILITY WHICH PERTAINS TO EARLIER YEARS AND, THEREFORE, LD. CIT(A) HAS WRONGLY ALLOWED THE RELIE F TO THE ASSESSEE AND HIS ORDER SHOULD BE SET ASIDE AND THAT OF AO BE RESTORE D. 4. ON THE OTHER HAND, LD. AR RELIED UPON THE ORDER PASSED BY LD. CIT(A) AND CONTENDED THAT ORDER PASSED BY LD. CIT(A) SHOUL D BE UPHELD. 5. WE HAVE HEARD BOTH PARTIES AND THEIR CONTENTION S HAVE CAREFULLY BEEN CONSIDERED. DURING THE COURSE OF HEARING LD. AR W AS REQUIRED TO FILE RETURNED ITA NO.5485/MUM/2012 (A.Y.2009-10) 3 INCOME FOR THE SUBSEQUENT YEAR I.E. FOR A.Y 2010-11 WHICH WAS FILED BY HIM AND IT IS SEEN FROM THAT RETURN THAT THE RETURNED INCOM E FOR A.Y 2010-11 IS RS.32,13,438/- ON WHICH THE MAXIMUM TAX RATE HAS BEEN PAID. FOR THE YEAR UNDER CONSIDERATION THE RETURNED INCOME OF THE ASSE SSEE IS A SUM OF RS.47,41,853/-. IN GROUND NO.1 & 2 REVENUE HAS AGI TATED THE DELETION ONLY ON THE BASIS THAT LIABILITY DID NOT PERTAIN TO FINANCI AL YEAR 2008-09 RELEVANT TO A.Y 2009-10 AND PAYMENT WAS NOT MADE DURING THIS FI NANCIAL YEAR, THEREFORE, LD. CIT(A) HAS WRONGLY GRANTED RELIEF TO THE ASSES SEE AS FOR ALLOWABILITY OF AN AMOUNT UNDER SECTION 43B, IF LIABILITY DOES NOT PER TAIN TO RELEVANT FINANCIAL YEAR THEN THE SAME CANNOT BE ALLOWED. THE ALLOWABI LITY OF THE IMPUGNED AMOUNT CANNOT BE DISPUTED WITH REGARD TO A.Y 2010-1 1 AS IN FINANCIAL YEAR 2009-10 THIS LIABILITY WAS PAID AND UNDISPUTEDLY U NDER SECTION 43B IF THE AMOUNT IS PAID IN THE FINANCIAL YEAR THEN THE SAME CAN BE CLAIMED. AS AGAINST THIS IT IS THE CASE OF THE ASSESSEE THAT IRRESPECT IVE OF THE FINANCIAL YEAR TO WHICH THE LIABILITY PERTAINS, IF THE AMOUNT IS PAID BEFORE DUE DATE OF FILING OF THE RETURN, THEN THE SAME CANNOT BE DISALLOWED. IT IS ALSO THE CONTENTION OF THE ASSESSEE THAT LIABILITY PERTAINS TO SERVICE TAX A ND IT DOES NOT FALL WITHIN THE AMBIT OF SECTION 43B AS PER DECISION OF ITAT IN THE CASE OF ACIT VS. REAL IMAGE MEDIA TECHNICAL PVT. LTD.( COPY OF ORDER PLACED ON RECORD) AS AGAINST SUCH DECISION RELIED UPON BY LD. AR NO CONTRARY DECISION WAS CITED ON BEHALF OF THE REVENUE. IN VIEW OF ENTIRETY OF THESE FACTS AND KEEPING IN VIEW THE FACT THAT ALLOWABILITY OR OTHERWISE OF THE IMPUGNED AMOUNT IN THE YEAR UNDER CONSIDERATION OR IN A.Y 2010-11 WILL NOT ALTER THE TAX LIABILITY OF THE ASSESSEE AND IT WILL MERELY A POSTPONEMENT OF THE DEDUCTION , WE ARE OF THE OPINION THAT WITHOUT GOING INTO THE MERITS OF THE CONTENTION OF BOTH THE PARTIES, THE VIEW TAKEN BY LD. CIT(A) SHOULD NOT BE INTERFERED WITH. IT MAY FURTHER BE MENTIONED THAT TAX RATE FOR A.Y 2009-10 AND 2010-11 ARE SAME AND FOR BOTH THE YEARS ASSESSEE HAS MORE TDS THAN THE LIABILITY FOR PAYMEN T OF TAX. FOR A.Y 2009-10 ON RETURNED INCOME OF RS. 47,41,853/- , AS AGAINST TAX LIABILITY OF RS.14,65,233/- THE TDS BENEFIT AVAILABLE TO THE ASS ESSEE IS A SUM OF ITA NO.5485/MUM/2012 (A.Y.2009-10) 4 RS.30,85,696/-. FOR A.Y 2010-11 ON RETURNED INCOME OF RS.32,13,438/- AGAINST TAX LIABILITY OF RS.9,92,952/- THE TDS AVA ILABLE WITH THE ASSESSEE IS A SUM OF RS.22,85,333/-. THEREFORE, WE DECLINE TO IN TERFERE IN THE RELIEF GRANTED BY LD. CIT(A) AND THESE GROUNDS OF THE REVENUE ARE DISMISSED. 6. APROPOS GROUND NO.3, THE SOLE GRIEVANCE OF THE R EVENUE IN THIS GROUND OF APPEAL IS THAT WITHOUT FILING THE REVISED RETURN ASSESSEE COULD NOT CLAIM THE BENEFIT WHICH HAS BEEN PROVIDED BY LD. CIT(A). LD. AR OF THE ASSESSEE PLACED RELIANCE UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BROKERS AND SHARES PVT. LTD. , 349 ITR 336 (BOM), IN WHICH IT HAS BEEN HELD THAT APPELLATE AUTHORITIES HAVE POWER TO CONSI DER THE CLAIM WHICH IS NOT MADE IN THE RETURN OF INCOME. 7. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES WE DECLINE TO INTERFERE IN THE RELIEF GRANTED BY LD. CIT(A) AS TH ERE IS NO GRIEVANCE EXPRESSED BY THE REVENUE ON THE MERITS OF THE DELETION AND D ELETION HAS AGITATED ONLY ON THE GROUND THAT WITHOUT FILING REVISED RETURN THE ASSSESSEE COULD NOT CLAIM THE SAID RELIEF. THIS GROUND OF THE REVENUE IS DISMISS ED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/10/20 14 !' # $%& 22/10/2014 ! ' SD/ SD/- ( . . /R.C.SHARMA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; $% DATED 22/10/2014 ITA NO.5485/MUM/2012 (A.Y.2009-10) 5 ()* ()* ()* ()* +*') +*') +*') +*') / COPY OF THE ORDER FORWARDED TO : 1. ,- / THE APPELLANT 2. (.,- / THE RESPONDENT. 3. / ( ) / THE CIT(A)- 4. / / CIT 5. *0' ()% , , / DR, ITAT, MUMBAI 6. '1 2 / GUARD FILE. % % % % / BY ORDER, .*) () //TRUE COPY// 3 33 3 / 4 4 4 4 5 5 5 5 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . % . ./ VM , SR. PS