JCIT (OSD), New Delhi v. M/s. IAP Company Pvt. Ltd., New Delhi

ITA 2386/DEL/2016 | 2011-2012
Pronouncement Date: 16-11-2017 | Result: Dismissed

Appeal Details

RSA Number 238620114 RSA 2016
Assessee PAN AAACI5099N
Bench Delhi
Appeal Number ITA 2386/DEL/2016
Duration Of Justice 1 year(s) 6 month(s) 17 day(s)
Appellant JCIT (OSD), New Delhi
Respondent M/s. IAP Company Pvt. Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 16-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 16-11-2017
Assessment Year 2011-2012
Appeal Filed On 29-04-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI ACCOUNTANT MEMBER I.T.A. NO. 2386 /DEL/201 6 A.Y. : 2011-12 JOINT COMMISSIONER OF INCOME TAX (OSD) CIRCLE 12(1) ROOM NO. 405 C.R. BUILDING NEW DELHI VS. M/S IAP COMPANY PVT. LTD. 18/13 WEST PATEL NAGAR NEW DELHI 110 008 (PAN: AAACI5099N) (ASSESSEE) (RESPONDENT) REVENUE BY : SH. ARUN KUMAR YADAV SR. DR ASSESSEE BY : NONE ORDER PER H.S. SIDHU : JM THE REVENUE HAS FILED THIS APPEAL AGAINST THE IMP UGNED ORDER DATED 26.02.2016 OF THE LD. CIT(A)-4 NEW DELHI REL EVANT TO ASSESSMENT YEAR 2011-12. 2. THE FOLLOWING ARE THE GROUNDS TAKEN BY THE DEPARTM ENT:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD. CIT(A) HAS ERRED IN DELETING 2 THE ADDITION MADE U/S. 43B OF THE ACT TO THE EXTENT OF RS. 1 95 32 414/- IN RESPECT OF SERVICE TAX LIABILITY. 2. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND MODIFY ADD AND FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE C OMPANY IS ENGAGED IN THE BUSINESS OF CONSULTANCY TRADING OF HARDWARE AND SOFTWARE PRODUCTS DURING THE YEAR UNDER CONSIDERATION . THE ASSESSEE COMPANY HAS E-FILED ITS RETURN OF INCOME O N 30.9.2011 SHOWING TOTAL INCOME OF RS. 1 81 68 550/-. NOTICE U/ S. 143(2) OF THE INCOME TAX ACT 1961 WAS ISSUED ON 27.8.2013 IN RESPONSE TO WHICH THE ASSESSEE COMPANY HAS PRODUCED BOOKS OF AC COUNTS AND SUPPORTING DOCUMENTS WHICH HAVE EXAMINED ON TEST CHECK BASIS. THEREAFTER THE AO HAS PASSED THE ASSESSMENT ORDER U /S. 143(3) OF THE ACT ON 28.3.2014 AND MADE A TOTAL ADDITION OF RS. 2 11 15 603/- ON ACCOUNT OF NON-PAYMENT OF SERVICE AND ESI/PF DUE S AND ON ADDITION ON ACCOUNT OF NON-DEPOSIT OF EMPLOYEE CONTRIB UTION OF EPF/ESI BY COMPLETING THE ASSESSMENT AT RS. 3 92 84 1 73/-. AGAINST THE AFORESAID ASSESSMENT ORDER ASSESSEE AP PEALED BEFORE 3 THE LD. CIT(A)-4 NEW DELHI WHO VIDE HIS IMPUGNED OR DER DATED 26.02.2016 HAS PARTLY ALLOWED THE APPEAL OF THE ASSE SSEE. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A) THE REVENU E IS IN APPEAL BEFORE THE TRIBUNAL. 4. LD. DR RELIED UPON THE ORDER OF THE AO AND REITE RATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. 5. IN THIS CASE NOTICE OF HEARING TO THE ASSESSEE WA S SENT BY THE REGISTERED AD POST IN SPITE OF THE SAME ASSESSEE NOR ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTE R IN DISPUTE NOR FILED ANY APPLICATION FOR ADJOURNMENT. HOWEVER THE NOTICE WAS RECEIVED BACK WITH THE REMARKS THIS FACTOR Y HAS BEEN CLOSED AND NO NEW ADDRESS HAS BEEN FURNISHED BY TH E ASSESSEE. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PR ESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE THEREFORE WE ARE DECIDING THE PRESEN T APPEAL EXPARTE QUA ASSESSEE AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVANT RECORDS ESPECIALLY THE IMPUGNED ORDER. WE FIND THAT THE ASS ESSEE COMPANY HAS NEITHER CLAIMED SERVICE TAX AS A DEDUCTION FROM I NCOME NOR HAS DEBITED TO PROFIT & LOSS ACCOUNT AS A PART OF EXPEND ITURE. IT HAD 4 COLLECTED THE SERVICE TAX FROM THE CLIENTS ON BEHALF OF THE GOVERNMENT AND THE SAME IS PAID TO THE GOVERNMENT AND HAS BEEN SHOWN IN THE BOOKS OF ACCOUNTS AS A CURRENT LIABILITY AND ACCORDINGLY PROVISIONS OF SECTION 43B OF THE INCOME TAX ACT. 196 1 ARE NOT APPLICABLE. WE NOTE THAT JUDGEMENT OF CHOWRINGHEE SAL ES BUREAU (87 ITR 542) CITED BY AO IN HIS ASSESSMENT ORDER IS TOTALLY DISTINGUISHABLE FROM THE CASE IN HAND AS IT IS RELATE D TO ISSUE OF SALES TAX AND NOT SERVICE TAX. THUS FROM PERUSAL O F PROVISIONS OF SECTION 43B OF THE INCOME TAX ACT 1961 AND ORDER OF J URISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. NOBLE & HEWITT (I) P LTD (2008) 305 ITR 324 DELHI AND VARIOUS OTHER CASES AS RELIED UPON BY THE ASSESSEE COMPANY WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE COMPANY HAS NOT DEBITED THE AMOUNT OF SERVIC E TAX TO THE PROFIT & LOSS ACCOUNT AS EXPENDITURE AND NOT CLAIMED A NY DEDUCTION OF THE SAME THEREFORE THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION OF RS. 1 95 32 414/- AND INVOKING TH E PROVISIONS OF SECTION 43B OF THE INCOME TAX ACT 1961 IN THE PRESENT CASE. ACCORDINGLY THE ADDITION OF RS. 1 95 32 414/- WAS RI GHTLY DELETED BY THE LD. CIT(A) WHICH DOES NOT NEED ANY INTERFERENCE ON OUR PART HENCE WE UPHOLD THE ACTION OF THE LD. CIT(A) AND ACC ORDINGLY REJECT THE GROUND RAISED BY THE REVENUE. 5 7. IN THE RESULT THE APPEAL FILED BY THE DEPARTMEN T STANDS DISMISSED. ORDER PRO NOUNCED IN THE OPEN COURT ON 16/11/2017. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 16/11/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHE S