2022 (12) TMI 586 - AT - Income Tax

Liability to pay excise duty and service tax - admissible deduction under the law - Allowability of revenue expenditure in its P L account under commercial expediency - AO and the CIT (Appeals) upheld the disallowance merely on the ground that the liability to pay service tax is not of the assessee, but rather it is the client - HELD THAT - Neither by the A.O in the assessment order nor by the Ld. CIT(A) in the first appellate order nor by the Ld. Senior D.R. before during argument before us, the factum was not controverted that the assessee could not recover impugned amounts of service tax and excise duty from its clients but paid the same to the Government and claimed it as business expenditure under commercial expediency to comply with the taxation provisions of the Government. It is not also a case of the A.O that the assessee recovered the amount from Vishakhapatnam Steel Plant and contract manufactures and did not pay the same to the Government or the assessee has wrongly claimed impugned amounts as revenue expenditure because the assessee had already recovered the same from Vishakhapatnam Steel Plant and contract manufacturers. In the situation when the assessee complying with the provisions of indirect taxation and deposit the service tax and excise duty to the exchequer as applicable to the business activity of the assessee. In a situation when the assessee is not able to recover such amounts fully or partially then the assessee is very well entitle to claim the same as revenue expenditure in its P L account under commercial expediency of complying with the taxation liability as well as maintaining business relations with the respective clients/costumers. Therefore we hold that the A.O was not right in making disallowance in the hands of assessee

Summary

Issues involved:
1. Disallowance of deduction in respect of exercise duty and service tax claimed by the assessee.
2. Allowability of deduction of exercise duty and service tax in the year of payment under section 43B of the IT Act.
3. Interpretation of liability to pay service tax and excise duty under the Service Tax Act.
4. Application of commercial expediency in claiming taxes and duties paid by the assessee as allowable deductions.
5. Invocation of section 154 of the IT Act by the Assessing Officer for making additions in the hands of the assessee.

Analysis:

Issue 1: Disallowance of deduction in respect of exercise duty and service tax claimed by the assessee.
The assessee contended that the rectification order passed by the Assessing Officer under section 154 of the IT Act, disallowing the deduction, was arbitrary, unjust, and contrary to the law. The Assessing Officer and the CIT(A) upheld the disallowance based on the premise that the liability to pay service tax was not of the assessee but of the client, which the assessee disputed. The Tribunal noted that the assessee had actually paid the service tax and excise duty to the government, even though it could not recover these amounts from its clients. The Tribunal held that the disallowance was not justified as the assessee had complied with indirect taxation provisions and claimed the amounts as business expenditure under commercial expediency.

Issue 2: Allowability of deduction of exercise duty and service tax in the year of payment under section 43B of the IT Act.
The assessee argued that exercise duty and service tax are allowable deductions in the year of their payment under section 43B of the IT Act, regardless of the year they relate to. The Tribunal agreed with this interpretation and emphasized that the liability to pay these taxes and duties was primarily on the assessee under the law, even if they may be reimbursed by the clients. The Tribunal held that the amounts paid by the assessee to the government were admissible deductions under the law, and the Assessing Officer could not disallow them under section 154 of the Act.

Issue 3: Interpretation of liability to pay service tax and excise duty under the Service Tax Act.
The Tribunal analyzed the provisions of Section 68 of the Service Tax Act and Rule 6A of the Service Tax Rules to determine the liability to pay service tax. It was established that the liability to make payment of service tax rested with the service provider, i.e., the assessee, and not the client. The Tribunal rejected the Assessing Officer's argument that the service tax liability was of the client, emphasizing that the assessee had indeed paid the service tax to the government, making it an allowable deduction under section 43B of the Act.

Issue 4: Application of commercial expediency in claiming taxes and duties paid by the assessee as allowable deductions.
The Tribunal referred to the judgment in the case of Tupperware India (P) Ltd. vs. CIT, where it was held that taxes and duties paid by the assessee, even if payable by a third party, could be claimed as business expenditure on account of commercial expediency. Drawing parallels to this case, the Tribunal concluded that the assessee's payment of service tax and excise duty, despite not recovering them from clients, was a valid business expenditure under commercial expediency.

Issue 5: Invocation of section 154 of the IT Act by the Assessing Officer for making additions in the hands of the assessee.
The Assessing Officer invoked section 154 of the IT Act to make additions related to exercise duty and service tax in the hands of the assessee. However, the Tribunal found that the Assessing Officer's contention that the liability was on the clients, not the assessee, was incorrect. The Tribunal held that since the assessee had paid the taxes and duties to the government, the disallowance made by the Assessing Officer was unwarranted.

In conclusion, the Tribunal partly allowed the appeal of the assessee, directing the Assessing Officer to delete the additions made, emphasizing the assessee's entitlement to claim the amounts paid as revenue expenditure under commercial expediency.