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TMI Blog2022 (12) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... mes payable when it is received and accounted for by the assessee. Therefore, applying Section 43B to the case on hand is illegal - alternatively argued that having regard to the jurisdictional limitations of this Court in an appeal u/s 260A when a patent error is pointed out in the circumstances considered by the Tribunal, the assessee should be afforded an opportunity before the Tribunal to canvass what the claim was and why the disallowance made by the AO is illegal and unsustainable. HELD THAT:- We have perused the order of the Assessing Officer, CIT (Appeals), and excerpted the mistake committed by the Tribunal from the material on record. We are of the view that the questions now formulated are substantial in nature, for conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of fact and law are identical in both appeals, the appeals are disposed of by this common judgment. The details referring to and leading up to the filing of appeals in this Court are stated in the following table: Sl. No. Assessment year and date of assessment Order of the Commissioner of Income-Tax (Appeals) Order of the Tribunal ITA 1 2012-13; dtd 30.03.2015; ITA 103/RI/ CIT(A)/2015-16 ITA No.653/Coch /2019 66/2020 2 2014-15; dtd 30.09.2016; ITA 33 34/CIT(A)/208-19 ITA No.04/Coch/2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial company or systemically important non-deposit taking nonbanking financial company, in accordance with the terms and conditions of the agreement governing such loan or borrowing, or (e) any sum payable by the assessee as interest on any loan or advances from a scheduled bank or a co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank in accordance with the terms and conditions of the agreement governing such loan or advances, or (f) any sum payable by the assessee as an employer in lieu of any leave at the credit of his employee, or (g) any sum payable by the assessee to the Indian Railways for the use of railway assets, Shall be allowed (irrespect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing years. The Assessing Officer, through Annexure-A order, disallowed the outstanding liability and has added back to the income of the Assessee for the respective assessment year. The Assessee filed an appeal before the Commissioner of Income Tax (Appeals) (for short, CIT (Appeals)), and the Appellate Authority examined the legality of the application of Section 43B of the Act to the circumstances on hand in para 8 as ground no.7, and in the concluding para as held as follows; The appellant also placed reliance on a decision of Hon'ble Kerala High Court in the case of Kerala State Electricity Board vs. DCIT 329 ITR 91, wherein Hon'ble High Court stated, we are of the opinion that, when section 43(B)(a) speaks of the sum payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Tribunal was right in confirming the disallowance of service tax payable under Section 43B, particularly when the same was not charged to the Profit and Loss Account or claimed as a deduction in the computation of income? 2) Whether on the facts and in the circumstances of the case there is any evidence or material on record for the Tribunal to substantiate its finding that the service tax payable represents service tax collected by the Appellant? 3) Whether on the facts and in the circumstances of the case, if Section 43B is found to be applicable with respect to the service tax liability remaining unpaid as on the due date of filing return, then should not the Appellant be allowed a deduction of the same in the appropriate year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings of the Tribunal as the findings are seriously flawed, and on assumptions, conclusions have been recorded and restored the findings recorded by the CIT (Appeals). It is alternatively argued that having regard to the jurisdictional limitations of this Court in an appeal under Section 260A of the Act, when a patent error is pointed out in the circumstances considered by the Tribunal, the assessee should be afforded an opportunity before the Tribunal to canvass what the claim was and why the disallowance made by the Assessing Officer is illegal and unsustainable. 7. Mr P.K.R Menon appearing for the Revenue, prefaces his argument that going by what has been recorded in the order of the Tribunal, he contends that no exception to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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