2018 (1) TMI 1703

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...., 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 return of income and added to the total income of the Appellant. Your Appellant submits that the service tax collected by the Appellant did not constitute its income of the year. Your appellant further submits that section 43-B of the I. T. Act is not applicable as the service tax is neither debited to profit & loss account nor claimed as deductible expenditure while computing the taxable income. 3. Brief facts of the case are as under: The Assessing Officer noted that the assessee had shown service tax payab....

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....hereby 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 section 43B. 6.16 With respect, it is pointed out that the grounds raised before the Hon'ble High Court was not whether the service tax collected is trading receipt or not? The question of disallowance u/s 43B would arise only when it is claimed by the assessee. It must also be pointed out that if the approach of excluding taxes, duty, fees, cess, are treated as separately accounted in the Balance Sheet is accepted, it will be tantamount to implicitly approving the circumventing of section 43B an....

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....ia) (P) Ltd. [143 DTR 32](Bombay) 1-7 2 CIT Vs. Noble & Hewitt (India) (P) Ltd [305 ITR 324](Delhi) 8-10 3 Calibre Personnel Services Pvt. Ltd Vs. ACIT [ITA No. 8188/M/2010 & 3407/M/2011] (ITAT Mumbai) 11-21 4 CIT Vs. Calibre Personnel Services Pvt. Ltd [ITA No. 158 & 160 of 2013](Bombay) 22-25 5 Pharma Search Vs. ACIT [82 DTR 303](Mumbai) 26-39 6 ACIT Vs. Real Image Media Technologies P. Ltd. [306 ITR(AT) 106] (Chennai) 40-50 7 Shri Kalu Karman Budhelia Vs. ACIT [ITA No.7305/Mum/2010](ITAT Mumbai) 51-56 8 Elcom Surveys Private Limited Vs. ACITflTA No. 2924/Mum/2010] (ITAT Mumbai) 57-59 9 Planet Advertising Pvt. Ltd, Vs. ACIT [ITA No.l500/Del/2011](ITAT Delhi) 60-63 ....