2022 (12) TMI 1441 - HC - Income Tax

High Court overturns Tribunal order denying service tax liability under Section 43B, remits matter for review.

M/s. KUNNEL ENGINEERS AND CONTRACTORS (P) LTD Versus THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-1 (2), KOCHI

The High Court ruled in favor of the appellant, setting aside the Tribunal's order disallowing the outstanding liability for service tax under Section 43B ... Application and entitlement of Section 43B - Tribunal confirming the disallowance of service tax payable u/s 43B, particularly when the same was not charged to the Profit and Loss Account or claimed as a deduction in the computation of income - whether 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? - As argued the liability becomes 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 conclusions are recorded on an erroneous appreciation of the reply of the assessee. Therefore, for statistical purposes, the questions are answered in favour of the assessee and against the Revenue. The common order is set aside and remitted to the Tribunal for consideration and disposal in accordance with the law.The parties, if so advised, are given the liberty to bring on record such material as respective parties may deem fit in support of their contentions. Assessee also claims the application of Section 145A of the Act. For the view we have expressed above, it is clear that we have not examined the availability or the extent to which the assessee’s case could be considered under Section 145A. All contentions are left open to be considered by the Tribunal. Issues:1. Interpretation of Section 43B of the Income Tax Act regarding deduction of certain payable sums.2. Disallowance of outstanding liability for service tax by the Assessing Officer.3. Appeal before the Commissioner of Income Tax (Appeals) and the subsequent order.4. Appeal before the Tribunal challenging the disallowance of service tax payable.5. Substantial questions of law raised for consideration.6. Arguments presented by Mr. Joseph Markose and Mr. P.K.R. Menon.7. Examination of orders by the Assessing Officer, CIT (Appeals), and the Tribunal.8. Decision of the High Court on the questions raised.9. Remittal of the matter to the Tribunal for further consideration.Analysis:1. The case involves the interpretation of Section 43B of the Income Tax Act, focusing on the deduction of certain payable sums. The issue arises from the appellant showing an outstanding liability for service tax, leading to a dispute regarding the application of Section 43B to the circumstances at hand.2. The Assessing Officer disallowed the outstanding liability for service tax, adding it back to the appellant's income for the respective assessment years. This action was based on the belief that the amount should have been accounted for and paid in the relevant years as per Section 43B.3. The appellant appealed before the Commissioner of Income Tax (Appeals) who, after examining the legality of Section 43B's application, ruled in favor of the appellant. The CIT (Appeals) relied on a decision of the Kerala High Court and the order of the ITAT, Cochin, in favor of the appellant.4. The Revenue filed a second appeal before the Tribunal challenging the disallowance of service tax payable. The Tribunal, through its order, accepted the Revenue's ground on the application of Section 43B, leading to further appeals under Section 260A of the Act.5. Substantial questions of law were raised for consideration, including the confirmation of disallowance under Section 43B, evidence of service tax collection, and the applicability of depreciation on certain assets.6. Mr. Joseph Markose argued against the Tribunal's findings, emphasizing that the service tax was not collected by the appellant and thus should not be disallowed. Mr. P.K.R. Menon, representing the Revenue, supported the Tribunal's order but agreed with remitting the matter for further consideration.7. The High Court examined the orders of the Assessing Officer, CIT (Appeals), and the Tribunal, noting substantial errors in the Tribunal's conclusions based on an incorrect appreciation of the appellant's case.8. Ultimately, the High Court ruled in favor of the appellant, setting aside the Tribunal's order and remitting the matter for reconsideration in accordance with the law.9. The High Court allowed the appeals, giving both parties the opportunity to present additional material before the Tribunal. The application of Section 145A of the Act was left open for further consideration by the Tribunal.