2025 (9) TMI 287

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....as 'the Act') for AY 2015-16 dated 05.07.2023, which has been passed against the assessment order u/s 143(3) of the Act, dated 28.12.2017. 2. The Revenue is in appeal before the Tribunal raising the following grounds of appeal: "1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A), was erred in allowing the appeal of the assessee by deleting the addition of Rs. 3,62,47,086/- u/s 43B without ascertaining whether the assessee actually received the payment on which service tax applicable? 2. That the appellant craves leave to add any new ground or alter or amend any of the grounds and put up necessary arguments to substantiate the above noted grounds." 3. Brief facts of the case are that the ....

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....sion:- Ground No.1:- The facts mentioned in the assessment order and the submissions made by the assessee have been perused. The Ld. AO during the course of assessment disallowed a sum of Rs. 3,62,47,086/- on account of non-payment of service tax before the due date of furnishing the return of income u/s 139(1). In view of the provision of section 43B the same was added back to the income of the assessee. ii. The assessee had also filed an application u/s 154 before the AO. It was contended that an expenditure of Rs 3,81,47,924/- has been wrongly considered as a deposit whilst it was a debit balance, thus, increasing the tax liability. The break-up of the same has also been given by the assessee before me in these proceedi....

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....f merits of his case submitted that the service tax has been paid by the assessee through CENVAT/cash before the due date for furnishing of return u/s 139(1). The income tax return of the assessee for relevant assessment year as well as Form 3CA and Form 3CD have been perused. The non-payment of Service Tax as per section 43B as determined by the Assessing Officer is Rs 3,62,47,086/-. v. Now the only question on merits to be determined is whether the disallowance made by the AO is to be sustained or not. It is true that the liability to make the payment of service tax arises when the payee has received the payment for the same and no liability shall arise until the payment is received by him. The liability of Rs. 3,62,47,086/- (sta....

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.....v on page 4 of the order of the Ld. CIT(A), which has been reproduced in the preceding para 3. Our attention was also drawn by the Ld. AR to page 21 column 26(i)(B)(b) of the Paper Book filed in which the auditor has certified as 'NO' in the column to state whether sales tax, customs duty, excise duty or any other indirect tax, levy, Cess, impost, etc. is passed through the profit and loss. The Ld. DR relied upon the order of the Ld. AO and requested that the same may be upheld and the order of the Ld. CIT(A) may be reversed as the Ld. CIT(A) has not ascertained whether the service tax was routed through the profit and loss account are not. 6. We have heard the rival submissions. The Ld. AO had added the difference between the service t....