TUFF GUARD FORCE PRIVATE LIMITED,MUMBAI V. COMMISSIONER OF INCOME TAX (APPEALS)/NFAC, DELHI

ITA 683/MUM/2025

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Tuff Guard Force Pvt. Ltd. appealed against the order of the Commissioner of Income-tax (Appeals) - National Faceless Appeal Centre, which dismissed their appeal on grounds of non-prosecution without a reasonable opportunity of hearing. The main issues in the appeal included the disallowance of Service Tax Payable/GST and Employees' Contributions to PF and ESIC under various sections of the Income Tax Act, 1961. The assessee opted to resolve the dispute under the 'Direct Tax Vivad Se Vishwas Scheme, 2024', submitted the necessary forms and tax payment, and requested the withdrawal of the appeal.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 32071 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2018-2019
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HEMANSHU JOSHI
• Assessee Lawyers: SHYAM SUNDER SHARMA
• Keywords: Set aside; Procedural lapse
• Section: 250; 43B; 20

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “E” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI RAJ KUMAR CHAUHAN (JUDICIAL MEMBER) ITA No. 683/MUM/2025 Assessment Year: 2018-19 Tuff Guard Force Pvt. Ltd., E/207, Kailash Esplande, Opp. Shreyas Cinema, L.B.S. Marg, Ghatkopar (W), Mumbai-400086. Vs. CIT(A), NFAC ITO 14(3)(1), Aayakar Bhavan, Mumbai-400020. PAN NO. AABCB 4892 K Appellant Respondent Assessee by : Mr. Shyamsunder Sharma, CA Revenue by : Mr. Hemanshu Joshi, Sr. DR Date of Hearing : 25/03/2025 Date of pronouncement : 25/03/2025 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 20.11.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2018-19, raising the following grounds: I. Order passed by CIT (A) under section 250 of the Income Tax Act, 1961 (herein referred to as \"the Act\") merely on account of non-prosecution without giving reasonable effective opportunity of hearing to the appellant 1. The learned CIT(A) erred erre November 2024 under section 250 of the Act in dismissing the appeal merely on account of non 2. The learned CIT(A) has an obligation and ought to have adjudicated appeal based on the rather than dismissing due to absence of representation and procedural lapses. 3. The learned CIT(A) has erred in passing the order dated 20 November 2024 under section 250 of the Act for the year under appeal without giving reasonabl hearing to the appellant. 4. The learned CIT(A) has passed the impugned order under section 250 of the Act, purely based on prejudiced view, which is bad in law and deserves to be set aside. II. Without prejudice to the 16,82,642 under section 43B of the Act 5. The learned CIT(A) erred in confirming the action of the learned AO in making disallowance of Service Tax Payable/GST of Rs.16,82,642 made under section 43B of the Act. 6. The lear service tax liability/GST of Rs. 16,82,642 has not been debited to profit and loss account as an expenditure nor has the appellant claimed any deduction for the same. Therefore, the question of disallowing the 7. Without prejudice to the above, the learned CIT(A) erred in facts and law in not granting the deduction or issuing the directions to allow deduction for the Service Tax /GST of Rs. 16,82,642 in the year in which it is appellant. The appellant, therefore, prays that the deduction for the above be allowed to the extent specified and the disallowance, be deleted accordingly kindly. Disallowance of Rs. 85,54,604 under section 36(l)(va) of the Act Tuff Guard Force Pvt. Ltd ITA No. 683/MUM/2025 reasonable effective opportunity of hearing to the 1. The learned CIT(A) erred erred in passing the order dated 20 November 2024 under section 250 of the Act in dismissing the appeal merely on account of non-prosecution. 2. The learned CIT(A) has an obligation and ought to have adjudicated appeal based on the -merits and substance rather than dismissing due to absence of representation and procedural lapses. 3. The learned CIT(A) has erred in passing the order dated 20 November 2024 under section 250 of the Act for the year under appeal without giving reasonable and effective opportunity of hearing to the appellant. 4. The learned CIT(A) has passed the impugned order under section 250 of the Act, purely based on prejudiced view, which is bad in law and deserves to be set aside. II. Without prejudice to the above: Disallowance of Rs. 16,82,642 under section 43B of the Act 5. The learned CIT(A) erred in confirming the action of the learned AO in making disallowance of Service Tax Payable/GST of Rs.16,82,642 made under section 43B of the Act. 6. The learned CIT(A) ought to have appreciated that the service tax liability/GST of Rs. 16,82,642 has not been debited to profit and loss account as an expenditure nor has the appellant claimed any deduction for the same. Therefore, the question of disallowing the said amount does not arise. 7. Without prejudice to the above, the learned CIT(A) erred in facts and law in not granting the deduction or issuing the directions to allow deduction for the Service Tax /GST of Rs. 16,82,642 in the year in which it is actually paid by the The appellant, therefore, prays that the deduction for the above be allowed to the extent specified and the disallowance, be deleted accordingly kindly. Disallowance of Rs. 85,54,604 under section 36(l)(va) of the Act Tuff Guard Force Pvt. Ltd 2 ITA No. 683/MUM/2025 reasonable effective opportunity of hearing to the d in passing the order dated 20 November 2024 under section 250 of the Act in dismissing the 2. The learned CIT(A) has an obligation and ought to have merits and substance rather than dismissing due to absence of 3. The learned CIT(A) has erred in passing the order dated 20 November 2024 under section 250 of the Act for the year under e and effective opportunity of 4. The learned CIT(A) has passed the impugned order under section 250 of the Act, purely based on prejudiced view, which above: Disallowance of Rs. 5. The learned CIT(A) erred in confirming the action of the learned AO in making disallowance of Service Tax Payable/GST ned CIT(A) ought to have appreciated that the service tax liability/GST of Rs. 16,82,642 has not been debited to profit and loss account as an expenditure nor has the appellant claimed any deduction for the same. Therefore, the 7. Without prejudice to the above, the learned CIT(A) erred in facts and law in not granting the deduction or issuing the directions to allow deduction for the Service Tax /GST of Rs. actually paid by the The appellant, therefore, prays that the deduction for the above be allowed to the extent specified and the disallowance, be Disallowance of Rs. 85,54,604 under section 36(l)(va) of the Act The learned CIT(A) has erred in upholding the disallowance of the following amounts under section 36(l)(va) of the Act even though paid by the appellant on or before due dates: Sr. No. Particulars 1 Employees' Contribution to PF 2 Employees' Contribution to ESIC The appellant respectfully submits that, the appellant has already paid the above amount, the appellant has already paid Rs.68,58,774 before the due date for filing its return of Income. The learned AO has ignored this fact which is clearly evident from the Tax Audit Report. Hence, the same is therefore, not disallowable under section 36(l)(va) of the Act. 10. The appellant, therefore, prays that the disallowance towards Employees Contribution to ESIC of Rs.68,58,774 be kindly deleted. 2. At the outset, the Ld. counsel for the assessee at the time of hearing submitted that assessee has opted to settle the issue in dispute involved in the present appeal through “D Vishwas Scheme, 2024 placed on record the Form No. 1 & 2 prescribed under the said scheme. The assessee has also filed a copy of tax challan dated 23.03.2025 discharging the tax determined under the Form No. 2 of the scheme. 2.1 In view of the above, the assessee requested to withdraw the appeal with liberty to restore in case of application does not go through finally. Tuff Guard Force Pvt. Ltd ITA No. 683/MUM/2025 earned CIT(A) has erred in upholding the disallowance of the following amounts under section 36(l)(va) of the Act even though paid by the appellant on or before due dates: Particulars Amount Employees' Contribution to PF 71,47,037 Employees' Contribution to ESIC 14,07,567 Total 85,54,604 The appellant respectfully submits that, the appellant has already paid the above amount, the appellant has already paid Rs.68,58,774 before the due date for filing its return of Income. learned AO has ignored this fact which is clearly evident from the Tax Audit Report. Hence, the same is therefore, not disallowable under section 36(l)(va) of the Act. 10. The appellant, therefore, prays that the disallowance towards Employees contribution to EPF and Employees Contribution to ESIC of Rs.68,58,774 be kindly deleted. At the outset, the Ld. counsel for the assessee at the time of hearing submitted that assessee has opted to settle the issue in in the present appeal through “Direct tax Vivad Se Vishwas Scheme, 2024”. The Ld. counsel for the assessee has placed on record the Form No. 1 & 2 prescribed under the said scheme. The assessee has also filed a copy of tax challan dated ging the tax determined under the Form No. 2 of In view of the above, the assessee requested to withdraw the appeal with liberty to restore in case of application does not go Tuff Guard Force Pvt. Ltd 3 ITA No. 683/MUM/2025 earned CIT(A) has erred in upholding the disallowance of the following amounts under section 36(l)(va) of the Act even Amount 71,47,037 14,07,567 85,54,604 The appellant respectfully submits that, the appellant has already paid the above amount, the appellant has already paid Rs.68,58,774 before the due date for filing its return of Income. learned AO has ignored this fact which is clearly evident from the Tax Audit Report. Hence, the same is therefore, not 10. The appellant, therefore, prays that the disallowance contribution to EPF and Employees At the outset, the Ld. counsel for the assessee at the time of hearing submitted that assessee has opted to settle the issue in irect tax Vivad Se he Ld. counsel for the assessee has placed on record the Form No. 1 & 2 prescribed under the said scheme. The assessee has also filed a copy of tax challan dated ging the tax determined under the Form No. 2 of In view of the above, the assessee requested to withdraw the appeal with liberty to restore in case of application does not go 3. After considering the submissions of both p examining the relevant records, we acknowledge that the assessee has opted for the resolution of the dispute under the \"Direct Tax Vivad Se Vishwas Scheme, 2024\" and has already remitted the tax determined there under. Accordingly, we allow the request for withdrawal of the present appeal, granting liberty to reinstate the appeal in the event that the assessee's application under the said scheme is ultimately not accepted 4. In the result, the appeal of the assessee is dismissed. Order pronounced in the open Court on Sd/ (RAJ KUMAR CHAUHAN JUDICIAL MEMBER Mumbai; Dated: 25/03/2025 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// Tuff Guard Force Pvt. Ltd ITA No. 683/MUM/2025 After considering the submissions of both p examining the relevant records, we acknowledge that the assessee has opted for the resolution of the dispute under the \"Direct Tax Vivad Se Vishwas Scheme, 2024\" and has already remitted the tax under. Accordingly, we allow the request for withdrawal of the present appeal, granting liberty to reinstate the appeal in the event that the assessee's application under the said scheme is ultimately not accepted. In the result, the appeal of the assessee is dismissed. nounced in the open Court on 25/03/2025. Sd/- Sd/ RAJ KUMAR CHAUHAN) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Tuff Guard Force Pvt. Ltd 4 ITA No. 683/MUM/2025 After considering the submissions of both parties and examining the relevant records, we acknowledge that the assessee has opted for the resolution of the dispute under the \"Direct Tax Vivad Se Vishwas Scheme, 2024\" and has already remitted the tax under. Accordingly, we allow the assessee’s request for withdrawal of the present appeal, granting liberty to reinstate the appeal in the event that the assessee's application In the result, the appeal of the assessee is dismissed. /03/2025. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai "