INCOME TAX OFFICER, WARD- 6(1)(3), BENGALURU vs. M/S. SPEED TRANS CARGO PRIVATE LIMITED, BENGALURU

This appeal at the instance of the Revenue is directed against CIT(A)’s order dated 03.04.2019. The relevant assessment year is 2012-2013.

The effective grounds raised by the Revenue, namely ground no.2 and 3 reads as follow:-

Aggrieved by the addition u/s 43B of the I.T.Act, the assessee preferred an appeal to the first appellate authority. Before the first appellate authority, the assessee contended that the service tax unpaid amounting to Rs.4,35,91,191 was never claimed as an expenditure / deduction in the profit and loss account warranting disallowance u/s 43B of the I.T.Act. In this context, the assessee relied on the judgment of the Hon’ble Bombay High Court in the case of CIT v. Knight Frank (India) Pvt. Ltd. in (judgment dated 16.08.2018). The CIT(A) by placing reliance on the Bombay High Court judgment cited supra, deleted the addition made u/s 43B of the I.T.Act by the A.O.

Aggrieved by the order of the CIT(A), the Revenue has filed this appeal before the Tribunal. The learned Departmental Representative submitted that the CIT(A) has not complied with the mandate prescribed under Rule 46A of the I.T.Rules, 1962. It was submitted that the assessee has not proved before the Assessing Officer that unpaid service tax amounting to Rs.4,35,91,191 was not claimed as a deduction in the profit and loss account of the assessee. It was submitted that the CIT(A) ought to have granted the A.O. an opportunity to M/s.Speed Trans Cargo Pvt. Ltd. . examine whether the unpaid service tax has been claimed as a deduction in the profit and loss account. In the absence of the same, the prescription mandated under Rule 46A of the I.T.Rules, has been violated.

The learned AR, on the other hand, submitted that the matter can be restored to the A.O., for the limited purpose of examination whether the unpaid service tax whether it is claimed as a deduction in the profit and loss account. It was stated by the learned AR that there should be specific direction to the A.O. not make addition u/s 43B of the I.T.Act, if the assessee has not claimed it as a deduction in the profit and loss account.

We have heard rival submissions and perused the material on record. The learned DR contended that the amount of unpaid service tax amounting to Rs.4,35,91,191 whether it has claimed as deduction in the profit and loss account was never examined by the A.O. and the CIT(A) without giving an opportunity to the A.O. by placing reliance on the additional evidence allowed the appeal of the assessee. The learned AR does not have any grievance for remitting the issue to the A.O. to examine whether the unpaid service tax has been claimed as a deduction in the profit and loss account. Therefore, this issue is restored to the files of the A.O. The A.O. is directed to examine whether the assessee had claimed the unpaid service tax as an expenditure / deduction in the profit and loss account. In the event the same is not claimed as a deduction / expenditure, the A.O. shall not invoke the provisions of section 43B of the I.T.Act in view of the judgment of the Hon’ble

In the result, the appeal filed by the Revenue is allowed for statistical purposes.