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Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA
Before: Sri J. Sudhakar Reddy, Hon’ble]
Assessment Year: 2009-10 Kankani Construction (P) Ltd…....…...………..……………………………………….…….……...Appellant C/o. S.N. Ghosh & Associates, Advocates “Seven Brothers’ Lodge” P.O. Buroshibtala P.S. Chinsurah Dist. Hooghly PIN- 712 105 [PAN : AABCK 4191 Q] J.C.I.T.(OSD) Circle-4, Kolkata………….……………………………………..………………..…. Respondent Aayakar Bhawan P-7, Chowringhee Square 8th Floor Kolkata – 700 069 Appearances by: Shri Somnath Ghosh, Advocate, appeared on behalf of the assessee. Shri Sanjoy Mukherjee, Addl. CIT, DR appearing on behalf of the Revenue. Date of concluding the hearing : December 28th, 2017 Date of pronouncing the order : January 19th, 2018
O R D E R Per J. Sudhakar Reddy :-
This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals)-2, Kolkata, (hereinafter the ‘ld. CIT (A)’), passed u/s 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 01/06/2017, for the Assessment Year 2009-10.
There is delay of 8 days in filing of the appeal. On perusal of the petition filed for condonation of delay, I am convinced that the assessee was prevented by sufficient cause from filing the appeal in time. The delay is condoned and the appeal is admitted.
After hearing rival contentions, I find there are two issues that arise in the appeal.
Assessment Year: 2009-10 Kankani Construction (P) Ltd 4. First is the addition of Rs.2,01,850/-, towards unpaid service tax u/s 43B of the Act, the second on account of addition of an amount of Rs.1,33,827/-, on account of unexplained sundry creditors, u/s 68 of the Act.
In case of service tax, I find that the assessee has not claimed the amount as expenditure during the year. When no expenditure has been claimed, the question of disallowance u/s 43B of the Act, does not arise as held by the Hon’ble Calcutta High Court in the case of A.W. Figgis And Co. Ltd. vs Commissioner Of Income-Tax 2002 256 ITR 268 Cal. Thus, this addition is deleted.
Coming to the addition of sundry creditors, I find that the first amount in dispute is liability of Rs.1,06,737/-, payable to Shri Ananta Das, which is a carry forward balance from the earlier year. As the credit did not arise during the year, no addition u/s 68 of the Act, can be made in this year. Hence the same is deleted.
6.1. The other addition is of an amount of Rs.27,090/-, being purchases on credit from M/s Calcutta Anodizing Works. Section 68 of the Act cannot be attracted when the fact of purchase is not in dispute and when the trading results have been accepted by the Assessing Officer. In the result, this addition is also deleted.
In the result, appeal of the assessee is allowed.