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TMI Blog2024 (10) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... contract amount was also not received by him since last 3 years. The assessee is said to have filed case against the BSNL under MSME Samadhan and also wrote various letters to Finance Minister of Government of India for early settlement of his dues. The case of the assessee is that he has not received payment of service tax and Goods Service Tax for the period under consideration and in the cases relied on by Addl./JCIT(A)-3, Bengaluru the amount of service tax was already received by the parties and not paid to the Government Exchequer. Accordingly, in our considered opinion, the case laws relied on by ld. Addl./JCIT(A)-3, Bengaluru do not apply in the present case. We find in the case of CIT vs. Ovira Logistics Pvt. Ltd [ 2015 (4) TMI 684 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Addl./JCIT(A)-3, Bengaluru for the assessment year 2018-19 2. The appellant has raised the following grounds of appeal :- 1. On the facts and in the circumstances of the case, the CIT(Appeals) has erred in upholding the addition of Rs. 30,46,456/- made by the Centralized Processing Centre (CPC) on account of disallowance u/s 43B for non-payment of Service Tax, even though neither the tax amount was received from the customer nor was the service tax amount debited to profit and loss account. Therefore, the same may be deleted. 2. On the facts and in the circumstances of the case, the CIT(Appeals) has erred in upholding the addition of Rs. 1,77,17,182/- made by the Centralized Processing Centre (CPC) on account of disallowance u/s 43B for no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st which the assessee is in appeal before this Tribunal, however the assessee has accepted the order of ld. Addl./JCIT(A)-3, Bengaluru with regard to addition of Rs. 27,216/- no ground is raised before the bench in this regard. 5. The ld. AR submitted before us that the order passed by the ld. Addl./JCIT(A)-3, Bengaluru is not correct. It was submitted that the assessee is a work contractor doing the contract work for BSNL. Due to cash crunch, BSNL has not paid the amount of service tax and Goods Service Tax to the assessee. It was submitted that the assessee has to receive almost Rs. 12 crores as dues from BSNL. BSNL is a Government company and not paying the dues of the assessee since last 3 years. The assessee has filed the case against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch; (x) Envision Enterprise Solutions Pvt. Ltd. vs. ITO, ITA No.315/Hyd/2016, dated 12.08.2016, ITAT Hyderabad Bench; (xi) Vijay Associates Wadhwa Construction Pvt. Ltd. vs. Addl. CIT, ITA No.5460/Mum/2015 dated 16.01.2018, ITAT Mumbai Bench; and, (xii) Planet Advertising Pvt. Ltd. vs. ACIT, ITA No.1500/Del/2011 dated 05.07.2013, ITAT, Delhi Bench. 6. The ld. Counsel of the assessee submitted that the ld. Addl./JCIT(A)-3, Bengaluru has dismissed the appeal of the assessee on the basis of following two decisions :- (i) Mr. Ashraf Nafisa Althaf vs. ITO, ITA No.614/Bang/2023. (ii) CIT vs. Ovira Logistics P. Ltd., 377 ITR 129 (Mum.). 7. With regard to the above two decisions relied on by ld. Addl./JCIT(A)-3, Bengaluru, it was contended by LD C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and also wrote various letters to Finance Minister of Government of India for early settlement of his dues. The case of the assessee is that he has not received payment of service tax and Goods Service Tax for the period under consideration and in the cases relied on by ld. Addl./JCIT(A)-3, Bengaluru the amount of service tax was already received by the parties and not paid to the Government Exchequer. Accordingly, in our considered opinion, the case laws relied on by ld. Addl./JCIT(A)-3, Bengaluru do not apply in the present case. In this regard, we find that Hon ble Bombay High Court in the case of CIT vs. Ovira Logistics Pvt. Ltd., (2015) 377 ITR 129 (Bombay) dismissed the departmental appeal and confirmed the order passed by ITAT wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This Court held that Section 43B does not contemplate liability to pay service tax before actual receipt of the funds in the account of the assessee. Hence the liability to pay service tax into the Treasury will arise only upon the assessee receiving the funds and not otherwise. Thus the consideration has to be actually received and thereupon the liability will arise. 11. No conclusion contravening the above has been brought to our notice by the Revenue. 12. In fact, Mr. Pinto was fair enough to bring to our notice this Judgment. 13. In the circumstances, each of these appeals raise no substantial question of law. They are dismissed accordingly. The issue being covered by a Division Bench and to which one of us (Shri S.C. Dharmadhikari, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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