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TMI Blog2014 (3) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer without taking minimum pains to see our objection letter filed before Assessing Officer during the asst. dated 30.04.2010. 2. That on the facts and in the circumstances of the case and in law, learned CIT(A) erred in affirming the disallowance u/s 43B of the Act amounting to Rs. 11,72,233/- on mere basis on admission before ld Assessing Officer without appreciating that there is no estoppels against the statute." 3. Apropos ground No. 2. 4. Brief facts of the case is as follows. The assessee filed return of income of Rs. 7,470/- in respect of Assessment Year 2008-09 which was e-filed on 30.09.2008. The case was processed u/s 143(1), of the Income Tax Act, 1961 (hereinafter "the Act") subsequent to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to pay tax, interest surcharge and education cess demanded thereon. 2. That having regard to the facts and circumstances of the case, Ld A.O. has erred in law and on facts in framing impugned assessment without serving the mandatory notice u/s 143(2) and without assuming the jurisdiction as per law to frame the assessment. 3. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other." 6. The ld CIT(A), by the impugned order dated 18.08.2011 has observed in respect of Ground No. 2, I e, regarding assessee's plea of non-receipt of notice u/s 143(2) that the said ground cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid amount to its Profit and Loss Account and in a similar case in CIT Vs. Noble & Hewitt (supra), the Hon'ble High Court of Delhi has held as under:- "Here we are concerned with an assessee who has not even claimed any deduction on the ground of service tax and has not debited the amount to its Profit and Loss Account. Moreover the provisions of Section 43B of the Act are quite clear in this regard. The decision of the Calcutta High Court in Chowringhee Sales Bureau was not in the context of the Assessment Proceeding applicability of Section 43B of the Act. In our opinion since the Assessee did not debit the amount to the Profit and Loss Account as an expenditure nor did the Assessee claim any de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he confession statements made by the assessee." 10. From a perusal of the assessment order we find that an explanation was sought from the assessee in respect to non-payment of outstanding service tax as on 31.03.2008, and since it was found by the AO that an amount of Rs. 11,72,233/- (service-tax) which was due to be paid before the due date of filing of return of income had been remitted after the due date. To this query the assessee had explained that due to clerical mistake this amount was not added to the income of the assessee company at the time of filing of the income tax return. The ld CIT(A) in his appellate order also relied upon the said explanation given by the AR before the Assessing Officer and came to a conclusion in the im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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