M/S. Svg Express Services, D v. Commissioner Of Income Tax, Circle-I, Central Revenue Building,Department Of Income Tax, Statue Cirlce, C-Scheme, Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 122 / 2017 M/s. SVG Express Services, D-76, Ghiya Marg, Bani Park, Jaipur. ----Appellant Versus Commissioner of Income Tax, Circle-I, Central Revenue Building,Department of Income Tax, Statue Cirlce, C-Scheme, Jaipur. ----Respondent _____________________________________________________ For Appellant(s) : Mr. S. L. Poddar on behalf of Mr. N. L. Agarwal For Respondent(s) : Mr. Anuroop Singhi with Mr. Aditiya Vijay Mr. N. S. Bhatti _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 12/12/2017 1.By way of this appeal, the appellant has challenged thejudgment and order of the Tribunal whereby the Tribunal haspartly allowed the appeal of the assessee reversing the view takenby CIT(A). 2.This court while admitting the appeal on 09.05.2017 framedthe following question of law:- “Whether the Ld. ITAT was justified under lawwhile sustaining the addition of the amount of Rs.88,79,713/- on the basis of Form 26AS only whilethe said amount which was pertaining to servicetax was not included in the profit and loss accountof the assessee for the AY 2012-2013, ignoring thesettled principle of law that provisions of Section43B can’t be invoked for making additions on account of tax liabilities where the same has notbeen claimed as deduction?” 3.Counsel for the appellant has contended that the Tribunal has not properly considered the judgment of Delhi High Court inthe case Income Tax Appeal No.839/2007 (Commissioner of Income Tax-8 Vs. Noble & Hewitt (India) (P) Ltd.) decided on 10[th] September, 2007 wherein which has been reproducedas under:- “In our considered since the assessee didnot debit the amount to the P&L a/c as anexpenditure nor did the assessee claim anydeduction in respect of the amount andconsidering that the assessee is following themercantile system of accounting, the questionof disallowing the deduction not claimedwould not rise.” 4.He contended that the aforesaid judgment has been followed by the Bombay High Court inIncome Tax AppealNo.158/2013(Commissioner of Income Tax-8 Vs. M/sCalibre Personnel Services Pvt. Ltd., Mumbai) decided on 2[nd]February, 2015 wherein which reads as under:- “We are unable to appreciate thegrievance of the Revenue as the Delhi HighCourt in Noble & Hewitt Pvt. Ltd. (Supra) hasconsidered both Section 43B of the Act andalso the issue of mercantile system ofaccounting followed by the assessee before it.The revenue is not able to point out why thedecision of Delhi High Court requiresreconsideration. In our view, the Delhi HighCourt’s decision in Noble & Hewitt Pvt. Ltd.(supra) has correctly held that Section 43B ofthe Act is a provision for allowing deduction oftax on payment but this can only be triggeredif deduction with regard to taxes payable isclaimed for arriving at taxable income” 5.Counsel for the respondent has contended that the judgmentpassed by the Tribunal just and proper. He has supported thereasoning adopted by the Tribunal in paragraph 3.3 which reads as under:- “The ld DR is heard who has relied heavily onthe order of the Hon’ble Supreme Courtdecision in case of Chowringhee Sales Bureau87 ITR 542 and submitted that the ld CIT(A)has rightly held the service tax collected aspart of the professional receipts and giventhat the same has not been deposited by thedue date of filing of return of income, thesame is not allowable under section 43B ofthe Act.” 6. We have heard both the parties. 7. In view of the observations made by the Delhi High Court inNoble & Hewitt (India) (P) (Supra), as reproduced above. The caseof the assessee is covered by the same observations of Delhi HighCourt. Hence, the issue is answered in favour of the assesseeagainst the department. 8. The appeal stands allowed. under:- “The ld DR is heard who has relied heavily onthe order of the Hon’ble Supreme Courtdecision in case of Chowringhee Sales Bureau87 ITR 542 and submitted that the ld CIT(A)has rightly held the service tax collected aspart of the professional receipts and giventhat the same has not been deposited by thedue date of filing of return of income, thesame is not allowable under section 43B ofthe Act.” 6. We have heard both the parties. 7. In view of the observations made by the Delhi High Court inNoble & Hewitt (India) (P) (Supra), as reproduced above. The caseof the assessee is covered by the same observations of Delhi HighCourt. Hence, the issue is answered in favour of the assesseeagainst the department. 8. The appeal stands allowed. (VIJAY KUMAR VYAS), J. (K.S. JHAVERI), J. B.M.G./Gourav/25