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TMI Blog2018 (1) TMI 1703X X X X Extracts X X X X X X X X Extracts X X X X ..... eal filed by the assessee stands allowed. - I.T.A. No. 5460/Mum/2015 - - - Dated:- 16-1-2018 - SHRI SHAMIM YAHYA, AM AND SHRI AMARJIT SINGH, JM For the Appellant : Shri Mahesh O. Rajora For the Respondent : Ms. Pooja Swaroop ORDER Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the order by the Commissioner of Income Tax (Appeals) dated 03.09.2015 and pertains to the assessment year 2011- 12. 2. The grounds of appeal read as under: 1. The Commissioner of Income Tax (Appeals)-21, Mumbai [CIT(A)] erred in confirming the disallowance of Service Tax of Rs.60,57,445/- u/s. 43B of the I. T. Act made by the AO on the ground that the service tax was paid after the due date of filling of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. by the Hon'ble Bombay High Court in ITA 158 and 160 of 2013 for A.Y. 2007-08 and 2008-09. In this case the grounds raised by the department was ''whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in deleting the disallowance of unpaid service tax u/s 43B of the Act without appreciating that the said liability was clearly disallowable within the provisions of the section The Hon'ble Bombay High Court dismissed the department appeal thereby upholding that the Hon'ble ITAT was correct in following the decision of the Delhi High Court in the case of Noble Hewitt Pvt. Ltd., as per which if the liability is not debited in P L account, there is no application of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty to claim the same on payment basis, if it claims its allowance u/s. 43B. 6. Against the above order, the assessee is in appeal before us. 7. We have heard both the counsel and perused the records. The learned counsel of the assessee submitted that the issue is squarely covered in favour of the assessee by several decisions including that from honourable jurisdictional High Court as under: Sr. No. Particulars Pg. no. 1 CIT Vs. Knight Frank (India) (P) Ltd. [143 DTR 32](Bombay) 1-7 2 CIT Vs. Noble Hewitt (India) (P) Ltd [305 ITR 324](Delhi) 8-10 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casion to invoke Section 43B of the Act. (b) Mr. Suresh Kumar, learned Counsel for the Revenue fairly states that the issue stands concluded against the Revenue by the decisions of this Court in CIT v. Ovira Logistics (P) Ltd. [2015] 377 ITR 129/232 Taxman 240/58 taxmann.com 206 (Bom.) and CIT v. Calibre Personnel Services (P) Ltd. [IT Appeal No. 158 of 2013] rendered on 2nd February, 2015. (c) In view of the above, the question (ii) as proposed is covered by the decision of this Court. Therefore, it does not give rise to any substantial question of law. Thus, not entertained. 9. From the above it is evident that the issue is covered in favour of the assessee by the decision of jurisdictional High Court as above. We take note that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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