9911796707
TMI Blog2012 (10) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... of the self-assessment - Held that:- This issue was raised by the assessee during the course of assessment proceedings and the same was not considered by the AO on merits, the assessee cannot be precluded from raising it in the appeal filed against the order of the AO. Merely because the AO has not considered the issue specifically raised by the assessee during the course of assessment proceedings and has not given any finding or decision thereon, it cannot be said that the said issue is not arising from the order of the assessment. Therefore issue remand back to CIT (A) for consideration Addition on account of difference between ITS details and books - The assessee could reconcile the ITS details except an amount of Rs 1,21,032/- Un-reconciled amount was treated by the AO as unexplained cash credit u/s 68 – Assessee contended that addition cannot be made merely on the basis AIR Information – Held that:- As the AIR (ITS) Data was provided by the AO to the assessee with an opportunity to reconcile the said data with the figures appearing in the books of account. A difference of Rs.1,21,032/- remained finally un-reconciled and such difference representing credit balance was rightl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid service tax cannot be added as income u/s. 43B as no deduction is claimed against the service tax. In this respect, we rely on following decisions in support of our claim. i) CIT v. Noble Hewitt (I) Pvt Ltd (305 ITR 324) (Delhi (HC) ii) CIT v. Viraj Foreigns Ltd (2008) 20 SOT 129 (Mum). Copies of both the decisions are enclosed. Without prejudice to the above, the service tax payable as per Service Tax Rules works out to Rs. 82 lakhs a up to 31.3 .2007. If at all addition is to be made u/s.43B, it may be restricted to Rs. 82 lakhs. In view of the above the unpaid service tax may not be added to income u/s.43B. The explanation offered by the assessee as above, was not found acceptable by the A.O. According to him, the assessee had followed Exclusive Method of Accounting in respect of taxes, duties etc. which was not acceptable for the purpose of income-tax by virtue of provisions of sec.145A of the Income-tax Act, 1961. He held that as per the provisions of sec.145A, the amount of service tax should be added to the corresponding receipts credited in the profit and loss account and the same should be debited as expenditure separately to the profit and loss account. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade u/s.43B, if the amount is not claimed as taken in P L A/c. The second argument taken by the appellant is that the - - tax can not be treated at par with the sale tax or excise duty and provision of section 145A are not applicable to the case of the Steel aggrieved by the order of the Ld. CIT (A) the assessee has preferred this appeal before the Tribunal. who is only a service provided. For this, reliance is placed by the appellant in the case of Real Image Media Technologies (P) Ltd.(supra). In the case of Real Image Media Technologies (P) Ltd., the Hon ble ITAT Chennai Bench held that the provision of section 4313 are not applicable to the service provider as service tax is placed on different footing. The main reasoning given were that under Rule 6 of the Service Tax Rules, the liability to pay service tax is on 5th of the following month after the following quarter whereas in the case of other organisations it has to be paid on the 5th of the month immediately following the calendar month. But in both the case, the liability arises to make the payment only after the service provider has received the payment and not otherwise. According to the ITAT, there is no liability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome. For this, it will be immaterial whether P L A/c is debited or not at the end of year. The appellant can settle its account either making an entry in the P L A/c or separately debiting service tax payable account. Therefore, the amount in question as service tax is covered by the provisions of section 43B. However, the Ld. AO has not taken into account that before the filing of return of income the appellant had paid part of the service tax and has added the entire amount as payable at the end of the financial year i.e. 1,33,32,579/-. The appellant submitted with the amount that was not before filing the return of income was Rs.82 lakhs only which should been disallowed by the Ld. AO. This is also an alternate ground by the appellant, I am in agreement, the alternate plea of the Appellant and accordingly the Ld. AO is directed to give relief to the amount which the appellant has paid before the filing of return of income. Accordingly, the addition made by the Ld. AO to the extent of Rs.82 lakhs is confirmed. This ground of appeal is partly allowed. Still aggrieved by the order of the Ld. CIT (A), the assessee has preferred this appeal before the Tribunal. 5. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved therein relating to disallowance made by the AO and confirmed by the Ld. CIT (A) on account of service taxes payable of Rs 1,80,95,036/- by invoking the provisions of sec.43B is similar to the one involved in the appeal of the assessee for the AY 2007-08 which has been decided by us in the foregoing portion of this order. Following our conclusion drawn in AY 2007-08, we set aside the impugned order of the Ld. CIT (A) on this issue and restore the matter to the file of the AO with the similar direction as given in AY 2007-08. Ground no.1 2 of the assessee s appeal are accordingly treated as allowed for statistical purpose. 8. The issue raised in ground no.3 relates to disallowance of Rs. 10,16,37,183/- made by the AO and confirmed by the Ld. CIT (A) on account of expenses by invoking the provisions of sec.40(a)(ia) for nondeduction of tax at source. 9. In the appeal filed before Ld. CIT (A) against the order passed by the AO u/s.143(3), ground no.2 was taken by the assessee raising the issue relating to disallowance of expenses amounting to Rs 10,16,37,183/- u/s. 40(a)(ia). Although the submissions made by the assessee on the said issue were discussed by the Ld. CIT ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks. 12. During the course of assessment proceedings, the assessee was provided with ITS details generated from computer system with a request to reconcile the same with receipts shown in the books of accounts. The assessee could reconcile the ITS details except an amount of Rs 1,21,032/-. The amount so un-reconciled was treated by the AO as unexplained cash credit and addition to that extent was made by him to the total income of the assessee u/s.68. On appeal, Ld. CIT (A) confirmed the said addition made by the A.O. for the reason that the assessee was not able to reconcile the difference to the extent of Rs 1,21,032/- even before him. 13. We have heard the arguments of both the sides and also perused the relevant material on record. Although the Ld. Counsel for the assessee has relied on the decision of co-ordinate Bench of this Tribunal in the case of Shri S. Ganesh (ITA 527/Mum/2010) wherein it was held that addition cannot be made merely on the basis AIR Information, it is observed that in the present case the AIR (ITS) Data was provided by the AO to the assessee with an opportunity to reconcile the said data with the figures appearing in the books of account. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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