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TMI Blog2013 (4) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... as part of income. The similar situation was examined by the Tribunal in the case of ACIT vs. Real Image Media Technologies (P) Ltd. (2007 (12) TMI 263 - ITAT MADRAS-C) and the Tribunal came to the conclusion that since the Service Tax was not payable by the assessee, the rigour of the provision of Section 43B could not be applied to the facts of the case. -Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... mers, therefore, it was liable to pay Service Tax. It was further contended that the Service Tax was a central levy under Rule 6(1) of Service Tax Rules, 1994 and as per the provisions of the Service Tax Act, the liability of Service Tax is required to be paid only on the value of taxable services after its actual receipt in a particular month or quarter, as the case may be and not on the gross amount billed by the assessee on the customers. In support of his contention he has also placed reliance upon the orders of the Tribunal in the case of Real Image Media Technologies (P) Ltd. [2008] 116 TTJ 964 (Chennai) and Noble & Hewitt (I) (P) Ltd. [2008] 166 Taxman 48 (Delh). He submitted that disallowance u/s 43B is not justified because Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t arise. The learned Counsel for the assessee further invited out attention to the order of the Tribunal in the case of Real Image Media Technologies (P) Ltd. (supra) in which the identical issue was examined by the Tribunal. Our attention was also invited to the order of the Tribunal in the case of Nafe Singh Gahlawat vs. ACIT, I.T.A. No.1028/Del/2011 dated 29/04/2011 in which the identical views were expressed by the Tribunal. Copy of the order of the Tribunal is placed on record. 6. Having given a thoughtful consideration to the rival submissions and from a careful perusal of the orders of the authorities below and the judgments referred to by the parties, we find that undisputedly the assessee has been following mercantile system of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B could not have been made, and the same had been correctly deleted by the Commissioner (Appeals). Secondly, section 43B(c) uses the expression 'any sum. payable'. For making any disallowance, first of all it has to be established that such sum is payable. The word 'payable' used in section 43B means that there is a kind of obligation on the part of payee to make the payment which is already due. A plain reading of rule 6 of the Service Tax Rules would show that service provider becomes liable to make the payment of service tax by the 5th of the month immediately following the calendar month in which the payments are received towards the value of taxable service. The first proviso provides for an exception in case of indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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