Poompuhar Shipping Corporation Ltd., CHENNAI V. DCIT Corporate Circle 5(2), CHENNAI

MA 204/CHNY/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9955 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 15-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN
• Assessee Lawyers: R VIJAYARAGHAVAN
• Section: 43B; 5(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , ! . '#'$ , % !& ' [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ] M.P.NO.204/CHNY/2018 ( ./I.T.A. NO.334/CHNY/2018) / ASSESSMENT YEAR: 2013-14 M/S. POOMPUHAR SHIPPING CORPORATION LIMITED, 692, ANNASALAI, NANDANAM, CHENNAI 600 035. [PAN AAACP 4383J] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 5(2) CHENNAI 600 034 (PETITIONER) ( ()*+ /RESPONDENT) PETITIONER BY : SHRI. R. VIJAYARAGHAVAN, ADV RESPONDENT BY : SHRI. B. SAGADEVAN, IRS, JCIT. /DATE OF HEARING : 07.12.2018 /DATE OF PRONOUNCEMENT : 07.12.2018 / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ASSESSEE THROUGH THIS MISCELLANEOUS PETITION STAT ES THAT THE IMPUGNED ORDER OF THE TRIBUNAL SUFFERED FROM THE FO LLOWING MISTAKES: IT IS RESPECTFULLY SUBMITTED THAT FOR THE ASSESSMEN T YEAR 2013-14, THE ASSESSEE (CORPORATION) MADE A PROVISIO N FOR SERVICE TAX TO THE EXTENT OF RS.5,92,15,838/ - VIDE NOTE 8 TO THE FINANCIAL STATEMENT AT PAGE 27 OF THE PRINTED B ALANCE SHEET ANNUAL REPORT WHEREAS THE ASSESSING OFFICER V IDE M.P. NO.204/CHNY/2018 :- 2 -: THEIR ORDER DATED 04.03.2016 DISALLOWED A SUM OF RS.6,36,64,605/- AND ADDED TO THE TOTAL INCOME OF T HE ASSESSEE U/S 43 B OF INCOME TAX ACT, 1961. IT WAS CONTESTED BY THE ASSESSEE BEFORE THE TRIBUNAL ON TH E GROUND THAT SERVICE TAX WAS NOT COLLECTED FROM THE RECEIVER OF THE SERVICES I.E., TANGEDCO ERSTWHILE TNEB BEFOR E FILING THE ITR FOR THE A/Y 2013-14 AND THE SERVICE TAX WAS COLLECTED AND REMITTED TO THE SERVICE TAX DEPARTMEN T IN MARCH 2015 ON RECEIPT. HOWEVER THE TRIBUNAL VIDE ITS ORDER DATED 10.04.201 8 DISMISSED THE GROUNDS OF THE ASSESSEE AND UPHELD TH E ORDER OF THE ASSESSING OFFICER. IN VIEW OF THE ABOVE, IT IS PRAYED THAT THE TRIBUNA L MAY DIRECT THE ASSESSING OFFICER TO CONSIDER THE ACTUAL . PROVISION OF SERVICE TAX OF RS.5,92, 15,538/ - AS SHOWN IN TH E ANNUAL REPORT INSTEAD OF DISALLOWED AMOUNT OF RS.6,36,64,6 05/ - AND PASS ORDERS. 2. HEARD THE RIVAL COUNSELS. GROUNDS TAKEN BY THE ASSESSEE IN RELATION TO THE DISALLOWANCE UNDER SECTION 43B O F THE ACT ARE REPRODUCED HEREUNDER:- THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF THE SERVICE TAX PAYA BLE U/S.43B OF E6,65,78,053/-. THE COMMISSIONER OF INCO ME TAX (APPEALS) STATED IN THE ORDER THAT THE THE SE RVICE TAX COLLECTED HAS NOT BEEN PAID TO THE GOVERNMENT . THIS IS CONTRARY TO THE FACTS OF THE CASE. THE SERV ICE TAX SHOWN IN THE BALANCE SHEET AS AT THE YEAR ENDED ON 31 ST MARCH 2013 WAS REMITTED ON 14.06.2013 AND ST3 RETUR N WAS FILED ON 24.09.2013. SINCE THE SERVICE TAX FOR THE PERIOD ENDED ON 31 ST MARCH, 2013 WAS REGULARIZED, THE DISALLOWANCE OF THE SERVICE TAX AMOUNT OF E6,65,78,053/- IS INCORRECT AND LIABLE TO THE DELET ED . 3. GROUND TAKEN BY THE ASSESSEE IN ITS APPEAL BEFORE L D. COMMISSIONER OF INCOME TAX (APPEALS) FOR IMPUGNED A SSESSMENT YEAR M.P. NO.204/CHNY/2018 :- 3 -: RELATING TO THE DISALLOWANCE UNDER SECTION 43B OF T HE ACT ARE REPRODUCED HEREUNDER:- THE ASSESSING OFFICER OUGHT TO HAVE APPRECIATED T HAT SECTION 43B PROVISIONS ARE APPLICABLE ONLY WHERE A DEDUCTION OTHERWISE ALLOWABLE UNDER THIS ACT HAS BE EN CLAIMED BY THE APPELLANT. THE ASSESSING OFFICER OUGHT TO HAVE APPRECIATED THA T IF THERE IS NO LIABILITY TO MAKE THE PAYMENT TO THE CR EDIT OF CENTRAL GOVERNMENT BECAUSE OF NON RECEIPT OF PAYMEN TS FROM THE RECEIVED OF THE SERVICES, THEN IT CANNOT B E SAID THAT SUCH SERVICE TAX HAS BECOME PAYABLE IN TERMS O F CLAUSE (A) OF SECTION 43B. 4. ASSESSEE HAS NOWHERE STATED THAT THE PROVISION FOR SERVICE TAX WAS ONLY E5,92,15,838/- AND NOT THE SUM OF E.6, 36,64,605/-, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) OR THIS TRIBUNAL. IF AT ALL ANY ERROR WAS COMMITTED BY THE LD. ASSESS ING OFFICER, WHILE CONSIDERING THE SUM THAT WAS TO BE DISALLOWED, IT O UGHT BE RECTIFIED BY LD. ASSESSING OFFICER, IF AND WHEN AN APPLICATION I N THIS REGARD IS MADE BY THE ASSESSEE BEFORE THE LD. ASSESSING OFFICER, A ND ONLY IF SUCH APPLICATION IS IN ACCORDANCE WITH LAW. IN ANY CAS E, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL, DISMISSING THE GROUND S TAKEN BY THE ASSESSEE ON MERITS, MUCH LESS ANY MISTAKE APPARENT ON RECORD COMING WITHIN THE PURVIEW OF SECTION 254(2) OF THE INCOME TAX ACT, 1961. WE THUS DO NOT FIND ANY MERIT IN THIS MISCEL LANEOUS PETITION. M.P. NO.204/CHNY/2018 :- 4 -: 5. IN THE RESULT, THE MISCELLANEOUS PETITION IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON FRIDAY, THE 7 TH DECEMBER, 2018, AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( ! . '#'$ ) (ABRAHAM P. GEORGE) % / ACCOUNTANT MEMBER / CHENNAI / DATED: 7 TH DECEMBER, 2018. KV ! ' #$ %$ / COPY TO: 1 . &' / APPELLANT 3. ( () / CIT(A) 5. $+, ' - / DR 2. '.&' / RESPONDENT 4. ( / CIT 6. ,/ 0 / GF