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TMI Blog2023 (9) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... ter taking into consideration, the issues as may have already been considered together with the issues discussed in order. Accordingly, PCIT has erred in setting with the issues discussed in order. Accordingly, PCIT has erred in setting aside the assessment order making it wide open instead of restricting the issues raised in the show cause notice. 3. On the facts and in circumstances of the case as well as law on the subject, the learned Pr. CIT has erred in holding that the amount of Rs. 3,85,407/- being addition to block of asset claimed as deduction from short term capital gain is disallowable. 4. On the facts and in circumstances of the case as well as law on the subject, the learned Pr. CIT has erred in holding that the PF & ESI amounting to Rs. 43,433/- (Rs. 42,193/- + 1,240/-) on account of employee contribution is disallowable under Explanation of sec 36(1)(va). 5. On the facts and in circumstances of the case as well as law on the subject, the learned Pr. CIT has erred in holding that the amount of Rs. 3,145/- being component of Cess on Service Tax claimed by the assessee as expense is disallowable u/s. 43B. 6. On the facts and in circumstances of the case as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ESI 606 21,05.2017 25.05.2017 634 21.09.2017 22.09.2017 Total 43433/- As per provision of section 36(1)(va) of the Act, the contribution paid after the due date is not eligible for deduction. The same is to be disallowed. But as per the computation of income available in ITBA portal, for A.Y. 2018-19, it was noticed by ld PCIT that the assessee has not disallowed the same. 5. Further on perusal of the Audit report, it was noticed by ld PCIT that the Service tax of Rs. 3,145/- was not paid upto the date of fifing of Return of income, hence the same is not allowable u/s 43B of the Act. 6. It was also noticed by ld PCIT from the Profit and Loss account that the assessee has claimed Rs. 194/- as interest paid on late payment of TDS, which is not allowable as per the provision of section 37(1) of the Act. 7. In view of the above facts, the ld PCIT observed that in the computation of STCG, the amount of Rs. 3,85,407/- debited on account of addition made during the year under consideration, without any documentary evidence, PF and ESI contribution of Rs. 43,433/- received from employees but deposited after the due date, failure to pay service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 67), (viii) Ledger of Multiplex (Theatre) of AY 2018-19 (vide Pb.68), (ix) Bills of additions made to theatres (vide Pb.69 to 72), (x) Relevant bank statement of Axis bank evidencing payments (vide Pb.73 to 77) and (xi) Ledger of service tax expense of AY 2018-19 (vide Pb.78 to 79). The ld Counsel submitted that ld PCIT has raised four small issues in his order under section 263 of the Act, the aggregate amount of these four issues comes to Rs. 4,32,179/- (Rs. 3,85,407 + Rs. 43,433 + Rs. 3,145 + Rs. 194). 10. Regarding the claim of deduction of Rs. 3,85,407/- being the amount debited on addition made during the year under consideration, from the STCG on sale of the Multiplex, the ld Counsel has contended that information regarding addition to multiplex account was available in the Schedule (2.3) of Fixed assets and the depreciation was a part of Statutory Audit Report and the assesses has disclosed the details in Form No. 3CD attached with the return of income (ROI). The ld Counsel also stated that the assessment order was finalised after perusal of ROI, material available on record and replies filed in response to notice issue u/s 142(1) of the Act. Thus it is clear case of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on addition made during the year under consideration, from the STCG on sale of the Multiplex, we find merit in the submission of the ld Counsel. We note that information regarding addition to multiplex account was available in the Schedule (2.3) of Fixed assets and the depreciation was a part of Statutory Audit Report and the assesses has disclosed the details in Form No. 3CD attached with the return of income (ROI). The assessment order was finalised after perusal of ROI, material available on record and replies filed in response to notice issue u/s 142(1) of the Act, therefore order passed by the assessing officer is neither erroneous nor prejudicial to the interest of revenue, hence we allow this issue of the assessee. 16. On the issue of late payment of PF & ESI of Rs. 43,433/-, we note that this issue is covered against the assessee by the judgment of the Hon`ble Supreme Court in the case of CHECKMATE SERVICES P. LTD , vide CIVIL APPEAL NO. 2833 OF 2016, dated 12.10. 2022. Therefore, we dismiss this ground of assessee. 17. On the issue of the claim of service tax expense of Rs. 3,145/- , we note that as per the Provisions of Service tax Act, assessee had paid service tax u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... junction with an erroneous order passed by the Assessing Officer. Their Lordship held that it has to be remembered that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the PCIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue "unless the view taken by the Assessing Officer is unsustainable in law". Therefore, we note that order passed by the Assessing Officer is neither erroneous nor prejudicial to the interest of Revenue except to the ground relating to PF and ESI of Rs. 43,433/- which we have dismissed. In case of other grounds of assessee, the Assessing Officer has taken a possible and reasonable view, therefore order passed by the Assessing Officer is neither erroneous nor prejudicial to the interest of Revenue (except PF and ESI of Rs. 43,433/-), therefore we allow the appeal of the assessee partly. 20. In the result, appeal filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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