DCIT 10(1), MUMBAI V. MUSIC BROADCAST P.LTD, MUMBAI

ITA 7838/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75915 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 21-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B , MUMBAI BEFORE SHRI N. K. BILLAIYA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 7838/M/2011 ASSESSMENT YEAR: 2007 - 08 THE ACIT - 10(1), 455, AAYAKAR BHAVAN, 4 TH FLOOR, M.K. MARG , MUMBAI - 400020 VS. M/S. MUSIC BROADCAST PVT. LTD. 5 TH FLOOR, RNA CORPORATE PARK, OFF. WESTERN EXPRESS HIGHWAY, KALA NAGAR, BANDRA (E), MUMBAI 400 051 PAN: AACCM403 6H (APPELLANT) (RESPONDENT) ASSES SEE BY : SHRI PRASHANT MAHESHWARI, MS. PRIYANKA GADA REVENUE BY : SMT. NEERAJA PRADHAN DATE OF HEARING : 27.03 .201 4 DATE OF PRONOUNCEMENT : 27.03.2014 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENU E AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(HEREINAFTER REFERRED TO AS CIT(A)] DATED 01.08.2011. THE SOLE GROUND RAISED BY THE REVENUE IS REGARDING THE DELETION OF ADDITION OF RS.45,35,418/ - UNDER SECTION 43B OF THE INCOME TAX ACT (H EREINAFTER REFERRED TO AS THE ACT) MADE BY THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) ON ACCOUNT OF SERVICE TAX LIABILITY. 2. THE FACTS OF THE CASE ARE THAT THE AO NOTICED THAT THE SERVICE TAX LIABILITY OF RS.45,35,418/ - HAD NOT BEEN AD DED TO THE TOTAL INCOME UNDER SECTION 43B OF THE ACT. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE EXPLAINED TO THE AO THAT SERVICE TAX WAS NOT ROUTED THROUGH P&L ACCOUNT AND WAS PAYABLE TO THE ITA NO. 7838/M/2011 M/S. MUSIC BROADCAST PVT. LTD. 2 GOVERNMENT ONLY AFTER THE COMPANY RECEIVES THE AMOUNT OF SERV ICE TAX FROM ITS CLIENTS. THE ASSESSEE ALSO INFORMED THE AO THAT THE ITAT IN ASSESSEES OWN CASE FOR A.Y. 2004 - 05 HELD THAT SERVICE TAX COULD NOT BE CONSIDERED UNDER SECTION 43B OF THE ACT. THE AO DID NOT ACCEPT ASSESSEES SUBMISSIONS BY HOLDING THAT SER VICE TAX LIABILITY AT RS.45,35,418/ - WAS LIABLE TO BE DISALLOWED UNDER SECTION 43B OF THE ACT. THE AO FURTHER HELD THAT THE ITAT DECISION IN ASSESSEES OWN CASE IN A.Y.2004 - 05 HAD NOT REACHED FINALITY . THE AO MADE DISALLOWANCE OF SERVICE TAX LIABILITY OF RS.45,35,418/ - UNDER SECTION 43B OF THE ACT. DURING APPELLATE PROCEEDINGS, THE ASSESSEE FILED ITS WRITTEN SUBMISSIONS STATING THAT THE SERVICE TAX LIABILITY WAS NOT DEBITED TO THE P&L ACCOUNT. THE ASSESSEE FURTHER ARGUED THAT SINCE THE COMPONENT OF SER VICE TAX WAS NOT RECEIVED FROM THE CLIENTS, THEREFORE THE SAME WAS NOT PAYABLE (AS PER SERVICE TAX RULES) TO THE GOVERNMENT UNDER SECTION 43B OF THE ACT. THE ASSESSEE FILED ITS DETAILED SUBMISSIONS REQUESTING THAT THE DISALLOWANCE MADE BY THE AO SHOULD BE DELETED. THE LD. CIT(A) OBSERVED THAT T HIS ISSUE WAS ALSO THERE IN ASSESSEES OWN CASE IN EARLIER YEARS. THE FACTS OF THE YEAR UNDER CONSIDERATION WE RE THE SAME. HE THEREFORE, F O LLOW ING THE ORDER OF THE TRIBUNAL IN RELATION TO EARLIER YEARS, DELETED T HE ADDITIONS SO MADE BY THE AO. 3. FROM THE ABOVE FACTS IT IS REVEALED THAT THE ISSUE UNDER CONSIDERATION HAD BEEN RAISED IN THE CASE OF THE ASSESSEE FOR EARLIER ASSESSMENT YEAR I.E. ASSESSMENT YEAR 20004 - 05. THE ISSUE TRAVELLED UP TO THE TRIBUNAL AND TH E TRIBUNAL , AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, DELETED THE ADDITION S ON THIS ISSUE. 4. THE LD. CIT(A) IN THE IMPUGNED ORDER HAS DELETED THE DISPUTED ADDITION FOLLOWING THE ORDER OF THE TRIBUNAL IN THE OWN CASE OF THE ASSESSEE F OR EARLIER ITA NO. 7838/M/2011 M/S. MUSIC BROADCAST PVT. LTD. 3 ASSESSMENT YEAR. THE LD. D.R. COULD NOT BRING BEFORE US ANY CONTRARY FACT OR CASE LAW WHICH MAY JUSTIFY DEPARTURE FROM THE ORDER OF THE TRIBUNAL GIVEN IN THE EARLIER YEAR ON THE IDENTICAL ISSUE. WE ACCORDINGLY DO NOT FIND ANY REASON TO INTERFE RE WITH THE ORDER OF THE LD. CIT(A). 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS THUS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.03. 201 4 . SD/ - SD/ - ( N. K. BILLAIYA ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 27.0 3 . 201 4 . * KISHORE COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.