Case Law Details

Case Name : Wyzmindz Solutions Pvt. Ltd. Vs ITO (ITAT Bangalore)
Appeal Number : ITA No. 3417/Bang/2018
Date of Judgement/Order : 30/01/2020
Related Assessment Year : 2014-2015

Wyzmindz Solutions Pvt. Ltd. Vs ITO (ITAT Bangalore)

Conclusion: Service tax collected by assessee and not paid to the Government exchequer before the due date of filing of return was to be disallowed under section 43B and the same should be allowed on actual payment in the assessment year in which it was actually paid.

Held: Assessee was a resident company following mercantile method of accounting, carrying on the business of IT enabled services. Assessee had filed its return of income declaring Income at Rs.Nil, after setting of brought forward losses and paid applicable taxes u/s 115JB of the I.T.Act. Assessee’s case was taken up for scrutiny u/s 143 and notice was issued u/s 143(2) to assessee by AO. AO concluded the assessment by determining the total income after disallowing service tax collected by the assessee u/s 43B of the Act. It was held that the service tax collected by assessee and not paid to the Government exchequer before the due date of filing of return, was to be disallowed, though it was not charged to the profit and loss account and it attracted the provisions of section 43B and the present provisions of section 145A could not be applied in view of non obstante clause in section 43B of the Act. However, it should be allowed on actual payment in the assessment year in which it was actually paid.

FULL TEXT OF THE ITAT JUDGEMENT

This appeal filed by the assessee is directed against the order of the CIT(A), dated 25.10.2018. The relevant assessment year is 2014-2015.

2. This is the second round of this appeal before the Tribunal. In the first round, the Tribunal vide its exparte order dated 18.01.2019, dismissed the appeal of the assessee. Thereafter, the assessee filed miscellaneous petition and the Tribunal vide its order in MA No.80/Bang/2019 dated 13.09.2019, recalled its earlier order dated 18.01.2019 for fresh adjudication. Hence, this appeal is before the Tribunal for the second round.

3. The assessee has raised the following grounds:-

“1. The impugned order passed by the learned Commissioner of Income-tax[Appeals] and that of the learned assessing officer passed under Section 143[3] of the Act to the extent which is against the appellant is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant’s case.

2. The appellant denies itself liable to be assessed on a total income determined by the learned assessing officer amounting to 58,17,228/ – and confirmed by the learned Commissioner of Income-tax [Appeals], as against the income reported by the appellant of Rs NIL the facts and circumstances of the case.

3. The provisions of section 145A applies only in respect of valuation purchase and sale of goods and inventory and not to service contracts for all transaction prior to 01/04/2017 (FA 2018).

4. The provisions of section 145A cannot be invoked for adding service tax to gross receipts (i.e., service tax cannot be included as part of trading receipts under section 145A of the Income Tax Act, 1961) for AY 2014-15.

5. The unpaid service tax liability cannot be disallowed under section 43B of the Income Tax Act, 1961, when the same is not claimed as expense in P&L account?

6. The learned officer has failed to appreciate the fact that the Service Tax amount has not been passed through the Profit & Loss Account and the same has not been expensed (i.e., not claimed as expenditure),
therefore, the question of invoking the provisions of section 43B does not arise and disallowance of Service Tax amount of Rs. 48,82,245/- is not justifiable.

7. The disallowance of b/f loss of Rs. 9,34,983/- arises due to additions made U/s 43B & 36 (1)(va), for FY 2012-13 & 2013-14, which is opposed by appellant in filed appeal dated 30.03.2016, which is still under appeal proceeding, hence addition of this amount is not justifiable.

8. The learned Commissioner of Income-tax [Appeals] was not justified in not providing one more opportunity and considering the fact and circumstance under which the erstwhile authorized representative of assessee was prevented from attending the hearing before him and to produce the sufficient explanation.

9. The learned assessing officer also erred in levying the interest u/ s. 234B of the Act and the same are not in accordance with law on the facts and circumstances of the case. Further, the quantum period and rate are not discernible from the assessment order.

10. The appellant craves leave of this Hon’ble Tribunal to add, alter, modify delete or substitute any or all of the above grounds of appeal as may be necessary at the time of hearing of the appeal.

11. For these and other grounds that may be urged at the time of hearing of appeal, the Appellant prays that the appeal may be allowed for the advancement of substantial cause of justice and equity.”

4. The facts of the case are that the assessee is a resident company registered under the Companies Act, 1956, following mercantile method of accounting, carrying on the business of IT enabled services. The assessee has filed its return of income for the assessment year 2014-2015 on 29.11.2014, declaring Income at Rs.Nil, after setting of brought forward losses of Rs.9,34,983 and paid applicable taxes of Rs.61,116 u/s 115JB of the I.T.Act. The assessee’s case was taken up for scrutiny u/s 143 and notice was issued u/s 143(2) on 28.08.2015 to the assessee by the A.O. The assessee filed the details as called for by the A.O. in response to notice u/s 143(2). Thereafter, the A.O. concluded the assessment by determining the total income at Rs.58,17,228 by disallowing service tax collected by the assessee at Rs.48,82,245 u/s 43B of the Act. Aggrieved by the order of assessment, the assessee went in appeal before the CIT(A), who confirmed the order of the Assessing Officer.

5. Aggrieved by the orders of the Income Tax Authorities, the assessee is in appeal before the Tribunal.

5.1 The learned AR filed a detailed submission and also reiterated the submissions made before the Income-tax authorities and also supported the grounds of appeal raised by it. The learned AR also relied on the following judgments/orders:-

(i) CIT v. Noble & Hewitt (I)(P) Ltd. [(2008) 166 Taxman 48 (Delhi).

(ii) Pharma Search v. ACIT [(2012) 21 taxmann.com 44 (Mum.).

(iii) CIT v. Knight Frank (India) (P) Ltd. [(2016) 72 taxmann.com 300 (Bombay)]

(iv) Shri N.R.Kumaraswamy v. ACIT [ITA No.1778/Bang/2017 – order dated 31.05.2018]

(v) Envision Enterprise Solutions P. Ltd. v. ITO [ITA No.315/Hyd/2016 – order dated 12th August, 2016]

(vi) CIT v. Vatika Township (P.) Ltd. [(2014) 49 taxmann.com 249 (SC)]

5.2 The learned Departmental Representative, on the other hand, submitted that the assessee has collected the service taxes and not paid to the Government exchequer till the due date of filing of return of income. Hence, it is to be treated as income of the assessee to be assessed for the assessment year under consideration. For this proposition, he relied on the order of the co-ordinate Bench of the Tribunal in the case of M/s. Jain Christopher v. DCIT in ITA No.855/Bang/2012 – order dated 12.04.2013. According to the learned DR, even if it is not charged to the profit and loss account and claimed as deduction, it does not change the chargeability of such non remittance of service tax in the hands of the assessee.

According to the learned DR, the moment when the service tax is realized, it becomes payable to the Government account and if it is not paid, it partakes the character of income of the assessee, since the assessee could utilize this amount in any manner whatsoever, there is no restriction placed on its utilization. Therefore, the assessee is liable to remit the collected service tax to the Government account within the stipulated date of filing of the return. Since the service tax realized is not included to the total income and not paid to the Government account, the same has to be treated as net profit of the assessee. The learned DR also relied on the following orders:-

(i) M/s. Hemkunt Infratech (P) Ltd. v. Deputy Commissioner of Income-tax [ITA No.6683/Del/2017 – order dated 23.03.2018]

(ii) Madhya Gujarat Viz. Co. Ltd. v. ITO [ITA No.2583/Ahd/2010 – order dated 09.11.2016]

(iii) M/s. Wyzmiundz Solutions Pvt. Ltd. v. ITO [ITA No.3417/Bang/2018 – order dated 18.01.2019]

(iv) M/s.Bartronics India Ltd. v. ACIT [ITA No.2188/Hyd/2011 & ITA No.2189/Hyd/2011 – order dated 31.05.2012, wherein held as under:-

“38. We have heard both the parties and perused the material on record and carefully considered assessment order and CIT(A) order. Admittedly the assessee has not paid the service as required under the provisions of section 43B which is also very much covered u/s 43B. The provisions of section 43B is very clear and it states that “any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force”. Therefore, even service tax is liability which covers u/s 43B and non-payment the same within the stipulated time as specified under section 43B attracts disallowances. Accordingly, we upheld the disallowances and confirmed the disallowances.”

6. I have heard the rival submissions and perused the material on record. In this case, the assessee has collected an amount of Rs. 48,82,245 as service tax and not remitted the same to the Government exchequer, before the due date of filing of the return of income. As such, the issue whether the provisions of section 43B of the I.T.Act applies to service tax, which is not paid before the due date of filing of the return. It was considered by the co-ordinate Bench of the ITAT, Hyderabad Benches in the case of M/s. Bartronics India Ltd. v. ACIT [ITA No. 2188 and 2189/Hyd/2011 – order dated 31.05.2012] that when the assessee has not paid the service tax as required under the provisions of section 43B, which is also very much covered u/s 43B of the I.T.Act. The provisions of section 43B of the Act is very clear and it states that “any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force”. Therefore, even the service tax is liability which covers u/s 43B of the Act and non-payment of the same within the stipulated time as specified u/s 43B of the Act attracts disallowance. Now the question is that when the assessee has not claimed it as expenditure in the profit and loss account, could it be disallowed u/s 43B of the Act. This was considered by the Hon’ble Apex Court in the case of Chowringhee Sales Bureau P. Ltd. v. CIT [(1973) 87 ITR 542 (SC)], in which it was held that the sales tax collected by the assessee is revenue receipt even if it is shown by the assessee under non-revenue head and such treatment by the assessee is not decisive. Further, in the case of M/s.Jain Christopher v. DCIT in ITA No.855/Bang/2012 – order dated 12.04.2013, it was held as under:-

“7.2 During the course of assessment proceedings, the AO observed that a sum of Rs.29 lakhs representing service tax collected by the assessee had not been paid, but, was shown as ‘outstanding liability’. Being queried, it was explained that it had not preferred any claim for deduction and, thus, it was argued, the question of disallowance u/s 43B of the Act does not arise. The AO took a view that even though the assessee had not claimed the same in its P & L account as an expenditure and, therefore, section 43B has no application. However, he was of the view that the fact remains that service tax collected by the assessee but not paid to the Government account up-to the end of the financial year or even up-to the date of filing of the return of income and, thus, by not including this amount in its service, it had clearly made a claim indirectly. As rightly highlighted by the CIT(A), the assessee’s plea that sales-tax was different from service tax cannot be accepted in the present circumstance as what the assessee was a firm of Chartered Accountants is selling is services and not goods, so the tax applicable is service tax which stands on the same bracket as sales tax in terms of services rendered as sales tax holds for goods sold. We have also observed that the AO had pointed out that the said amount has been included as business receipts in its TDS Certificates and as such, the same should have been included in its receipts. This has not been precisely done by the assessee. The case laws relied on by the assessee is dealt with as under:

(i) ACIT v. Real Image Media Technologies (P) Ltd. (ITAT­ Chennai):

7.2.1 The assessee was running a recording and dubbing studio, production of advertisement, films and television serials etc., as well as in software development. The amount of service tax included in bills issued but not received. Accordingly, the Hon’ble Tribunal had recorded its findings that ‘As per s. 68 of Finance Act, 1994 read with rule 6 of Service Tax Rules, 1994, the service tax becomes payable only on receipt of service tax from the client. Therefore, the amount of service tax included in bills but not received could not be disallowed under s. 43B’. After analysing the relevant provisions of Income tax Act as well as Service Tax Act, the Tribunal had, further, recorded its findings as under:

“12………………………………………………………From a plain reading of the above provision it becomes clear that the rigour of this provision would be attracted only in a case where an item is allowable as deduction but because of the failure to make payment such deduction will not be allowed. It can be argued that in the case of ST also the assessee does not claim deduction since it has been held that non-payment of Sales-tax would attract provisions of section 43B, but that is being done on the basis of the principles laid down by the Hon’ble Supreme Court in the case of Chowringhee Sales Bureau Ltd. V CIT 110 ITR 385 that Sales-tax is part of the trading receipt. Further, section 145A clearly provides that for the purpose of determining income under the head profits and gains of business or profession, the amount of purchase and sales i.e. turnover would include any tax, duty cess or fee. Therefore, the rigour of section 43B may be applicable in the case of Sales-tax or Excise Duty but the same cannot be said to be the position in case of Service-tax because of two reasons. Firstly, the assessee is never allowed deduction on account of service tax which is collected on behalf of the Govt. and paid to the Govt. accordingly. Therefore, a service provider is merely acting as an agent of the Govt. and is not entitled to claim deduction on account of service tax. Hence, on this account alone addition u/s 43B could not be made and the same has been correctly deleted by the CIT(Appeals) ”.

However, in the instant case, as admitted by the assessee, service tax has been collected but not paid to the Government account either up-to the end of the financial year or even up-to the date of filing of the return of income. Thus, the case law relied on by the assessee is distinguishable and cannot come to the rescue of the assessee.

  • CIT v. Noble and Hewitt India (P) Ltd (Del)

7.2.2 The Hon’ble Delhi High Court was predominantly concerned with the disallowance of deduction by invoking the provisions of section 43B of the Act. The Hon’ble Delhi High Court was not considering the issue whether the service tax collected and the remaining unpaid till the due date of furnishing of the return forms the part of the total income for the current year.

  • DCIT v Manish M Chheda 29SOT 138 – Mumbai ITAT

7.2.3 In the above case, the Hon ’ble Mumbai Tribunal was considering the applicability of section 28(iv) of the I T Act. In the instant case, it is an admitted fact that during the course of assessee’s profession, a sum of Rs.29, 60,000/- was realised/collected as service tax payable and the same is not capital receipt. The moment the service tax is realised, it becomes payable to the Govt. account and if it is not paid, it partakes the character of income of the assessee, since the assessee could utilise this amount in any manner whatsoever, there is no restriction placed on its utilisation. This is amply clear from the TDS certificate furnished by the assessee and also the credit appearing in the assessee’s bank account. Therefore, to arrive at the professional income, the service tax realised should have been included in the gross receipts unless paid to Government exchequer within the due date of filing of return. Since service tax realised is included in the total income, the same is to be allowed as a deduction in the year it is paid to the Government account. In the instant case, this is what has been done by the learned CIT(A). The CIT(A) had allowed the alternative plea of the assessee and had directed the Assessing Officer to deduct the service tax when the payment is made to the Govt. account in the subsequent year. Therefore, we find there is no merit in the contention raised on behalf of the assessee and this issue is decided against the assessee. It is ordered accordingly.”

6.1 Further, in the case of M/s.Hemkunt Infratech (P) Ltd. v. DCIT [ITA No.6683/Del/2017 – order dated 23.03.2018], the Delhi Benches of the Tribunal held as under:-

“6. After hearing both the sides and perusing the entire material available on record, we observe that there is a credit balance of Rs. 1,16,09,924/- at the end of the year towards expenses payable. The assessee submitted that it is service tax liability, which arose due to crediting the service tax received from the service recipients. The assessee has challenged before us, the disallowance of Rs.85,26,467/- disallowed u/s. 43B of the Act. We observe that the assessee has recorded his turnover after deducting the service tax received and the service tax has been credited separately. In section 145, of the Act for determining the income chargeable under the head profits and gains of business or profession or income from other sources, the same is to be computed in accordance with either cash or mercantile system of accounting regularly employed by the assessee. The said provisions were substituted by the Finance Act, 1995 w.e.f. 01.04.1997. Under section 145A of the Act, it is provided that notwithstanding anything to the contrary contained in clause(a) to section 145, the valuation of purchase and sale of goods and inventory, for the purpose of determining the income chargeable under the head profits and gains of business or profession, shall be (i) in accordance with method of accounting regularly employed by the assessee; and (ii) further adjusted to include the amount of any tax, duties, cess or fees, by whatever name called, actually paid or incurred by the assessee, to bring the goods to the place of its location and condition, as on the date of valuation. As per the explanation under the said clause, it is pointed out that for the purpose of this section, any tax, duties, cess or fees, by whatever name called, under any law for the time being in force, shall include all such payments, notwithstanding any right arising as a consequence to such payments. Sub-clause (b) talks of interest received by the assessee on compensation or enhanced compensation, which is not relatable to the issue before us. The aforesaid provisions of section 145A of the Act have been substituted by the Finance (No.2) Act, 2009 w.e.f. 0 1.04.2010. Prior to its substitution, which was inserted by the Finance (No.2) Act, 1998 w.e.f. 01.04.1999, the section provided the provision relatable to the valuation of purchase and sale of goods and inventory, for the purpose of determining the income chargeable under the head profits and gains of business or profession and no clause (b) was provided i.e. in respect of income received by the assessee on compensation or on enhanced compensation. In view of the amended provisions of the Act, which came into effect from 01.04.1999 for valuing the purchases and sales of goods and also for valuing the inventory, while determining the income chargeable under the head profits and gains of business or profession, it has been provided that the said valuation would be in accordance with the method of accounting regularly employed by the assessee i.e. either mercantile or cash. Further, adjustment is to be made to include the amount of any tax, duties, cess or fees, by whatever name called, actually paid or incurred by the assessee to bring the goods to the place of its location and condition, as on the valuation date. In other words, where any expenditure is actually paid or incurred by the assessee by way of any tax, duties, cess or fees, by whatever name called, then adjustment is to be made both in the valuation of purchase and sale of goods and also in the valuation of inventory to include the aforesaid amounts while determining the income chargeable under head profits and gains of business or profession. The assessee has separately accounted for the service tax collected is also the indirect part of turnover because it is received along with turnover. The assessee has not shown any invoice raised by him before us as per service tax Rules, which is mandatory for the service provider to issue invoice to the service recipient. He has also not produced any evidence regarding payment received from service recipients as to how they have paid – separately or inclusive of service Tax. He has also not produced any evidence regarding whether the TDS has been remitted on payment after excluding the service tax. After going through the paper book filed by the assessee, we observe that the assessee has utilized service tax credit towards payment of duty on capital goods and as per Reverse Charge Mechanism. Therefore, it is necessary to discuss the relevant provisions of the Cenvat Credit Rules, 2004 as well as section 43B of the IT Act.

7. Section 43B(a) is as under :

43B. Notwithstanding anything contained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of—

(a) any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force, or

8. Rule 4 of the CENVAT Credit Rules, 2004 reads as under : Rule 4. Conditions for allowing CENVAT credit.-

(1) The CENVAT credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service:

Provided that in respect of final products, namely, articles of jewellery falling under heading 7113 of the First Schedule to the Excise Tariff Act, the CENVAT credit of duty paid on inputs may be taken immediately on receipt of such inputs in the registered premises of the person who get such final products manufactured on his behalf, on job work basis, subject to the condition that the inputs are used in the manufacture of such final product by the job worker.

(2) (a) The CENVAT credit in respect of capital goods received in a factory or in the premises of the provider of output service at any point of time in a given financial year shall be taken only for an amount not exceeding fifty per cent. of the duty paid on such capital goods in the same financial year:

Provided that the CENVAT credit in respect of capital goods shall be allowed for the whole amount of the duty paid on such capital goods in the same financial year if such capital goods are cleared as such in the same financial year.

Provided further that the CENVAT credit of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act, in respect of capital goods shall be allowed immediately on receipt of the capital goods in the factory of a manufacturer.

Provided also that where an assessee is eligible to avail of the exemption under a notification based on the value of clearances in a financial year, the CENVAT credit in respect of capital goods received by such assessee shall be allowed for the whole amount of the duty paid on such capital goods in the same financial year.

Explanation.- For the removal of doubts, it is hereby clarified that an assessee shall be “eligible” if his aggregate value of clearances of all excisable goods for home consumption in the preceding financial year computed in the manner specified in the said notification did not exceed rupees four hundred lakhs.

(b) The balance of CENVAT credit may be taken in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer, or in the premises of the provider of output service, if the capital goods, other than components, spares and accessories, refractories and refractory materials, moulds and dies and goods falling under heading 6805, grinding wheels and the like, and parts thereof falling under heading 6804 of the First Schedule to the Excise  Tariff Act, are in the possession of the manufacturer of final products, or provider of output service in such subsequent years.

Illustration.- A manufacturer received machinery on the 16th day of April, 2002 in his factory. CENVAT of two lakh rupees is paid on this machinery. The manufacturer can take credit upto a maximum of one lakh rupees in the financial year 2002-2003, and the balance in subsequent years.

(3) The CENVAT credit in respect of the capital goods shall be allowed to a manufacturer, provider of output service even if the capital goods are acquired by him on lease, hire purchase or loan agreement, from a financing company.

(4) The CENVAT credit in respect of capital goods shall not be allowed in respect of that part of the value of capital goods which represents the amount of duty on such capital goods, which the manufacturer or provider of output service claims as depreciation under section 32 of the Income-tax Act, 1961( 43 of 1961).

(5) (a) The CENVAT credit shall be allowed even if any inputs or capital goods as such or after being partially processed are sent to a job worker for further processing, testing, repair, re-conditioning, or for the manufacture of intermediate goods necessary for the manufacture of final products or any other purpose, and it is established from the records, challans or memos or any other document produced by the manufacturer or provider of output service taking the CENVAT credit that the goods are received back in the factory within one hundred and eighty days of their being sent to a job worker and if the inputs or the capital goods are not received back within one hundred eighty days, the manufacturer or provider of output service shall pay an amount equivalent to the CENVAT credit attributable to the inputs or capital goods by debiting the CENVAT credit or otherwise, but the manufacturer or provider of output service can take the CENVAT credit again when the inputs or capital goods are received back in his factory or in the premises of the provider of output service.

(b) The CENVAT credit shall also be allowed in respect of jigs, fixtures, moulds and dies sent by a manufacturer of final products to,-

(i) another manufacturer for the production of goods; or

(ii) a job worker for the production of goods on his behalf, according to his specifications.

(6) The Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of the manufacturer of the final products who has sent the input or partially processed inputs outside his factory to a job-worker may, by an order, which shall be valid for a financial year, in respect of removal of such input or partially processed input, and subject to such conditions as he may impose in the interest of revenue including the manner in which duty, if leviable, is to be paid, allow final products to be cleared from the premises of the job-worker.

(7) The CENVAT credit in respect of input service shall be allowed, on or after the day which payment is made of the value of input service and the service tax paid or payable as is indicated in invoice, bill or, as the case may be, challan referred to in rule 9.

9. As per Rule 6(1) of the Service Tax Rules, 1994, in case of company, service tax is to be paid on a monthly basis by 5th of the following month (in case of e-payment, by 6th of the month immediately following the respective month). However, the payment for the month of March is required to be made by 31st of March itself. As per Rule 6(4) of the Service Tax Rules, 1994, the asses see can pay for provisional payment of service tax in case he is not able to correctly estimate the tax liability. In such a situation, he may request in writing to the jurisdictional Assistant/Dy. Commissioner for the same.

10. As per section 73A of the Finance Act, 1994, any person who has collected any sum on account of Service Tax, is under obligation to pay the same to the Government. He cannot retain the sum so collected with him by contending that the service tax is not payable.

11. As per section 173A of the Service Tax Act, in case, the service tax is collected, the provision is as under :

173A. Service Tax collected from any person to be deposited with Central Government:-

(1) Any person who is liable to pay service tax under the provisions of this Chapter or the rules made thereunder, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this Chapter or the rules made there under from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected to the credit of the Central Government.

(2) Where any person who has collected any amount, which is not required to be collected, from any other person, in any manner as representing service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government.

(3) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) or sub-section (2) and the same has not been so paid, the Central Excise Officer shall serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government.

(4) he Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub- section (3), determine the amount due from such person, not being in excess of the amount specified in the notice, and thereupon such person shall pay the amount so determined.

(5) The amount paid to the credit of the Central Government under sub­section (1) or subsection (2) or sub-section (4), shall be adjusted against the service tax payable by the person on finalisation of assessment or any other proceeding for determination of service tax relating to the taxable service referred to in sub-section (1).

(6) Where any surplus amount is left after the adjustment under sub­section (5), such amount shall either be credited to the Consumer Welfare Fund referred to in section 12C of the Central Excise Act, 1944 or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B of the said Act and such person may make an application under that section in such cases within six months from the date of the public notice to be issued by the Central Excise Officer for the refund of such surplus amount.]

12. We further observe that the point of taxation as per Rule 3 of Point of Taxation Rules, 2011 is as under :

RULE 3. Determination of point of taxation. – (Notification No. 18/2011- ST dt. 01.03.2011 as amended).

For the purposes of these rules, unless otherwise provided, point of taxation shall be,-

(a) the time when the invoice for the service provided or agreed to be provided is issued :

Provided that where the invoice is not issued within the time period specified in rule 4A of the Service Tax Rules, 1994, the point of taxation shall be the date of completion of provision of the service.

(b) in a case, where the person providing the service, receives a payment before the time specified in clause (a), the time, when he receives such payment, to the extent of such payment :

Provided that for the purposes of clauses (a) and (b), –

(i) in case of continuous supply of service where the provision of the whole or part of the service is determined periodically on the completion of an event in terms of a contract, which requires the receiver of service to make any payment to service provider, the date of completion of each such event as specified in the contract shall be deemed to be the date of completion of provision of service;

(ii) wherever the provider of taxable service receives a payment up to rupees one thousand in excess of the amount indicated in the invoice, the point of taxation to the extent of such excess amount, at the option of the provider of taxable service, shall be determined in accordance with the provisions of clause (a).

Explanation – For the purpose of this rule, wherever any advance by whatever name known, is received by the service provider towards the provision of taxable service, the point of taxation shall be the date of receipt of each such advance.”

13. After considering the above provisions, it is clear that the assessee has to pay service tax within due date as set out under the above provisions either by way of cash/cheque or by way of availing CENVAT credit as per Rules as stated above, but the assessee did not do so. The liability of service tax had also arisen as per the point of Taxation Rules, as stated above.

14. Now, we have to examine the case of the assessee in the light of the above provisions. During the impugned year, the assessee has credit balance of service tax payable as on 31.03.2013 of Rs. 1,16,09,924/- which was to be paid upto 31.03.2013 by the assessee, but he did not Further, the assessee had paid a sum of Rs.30,83,457/- before filing of IT return. As per section 43B(a), the above outstanding payment was to be paid upto the date of filing of return of income. As per method of accounting, the assessee has also not included the service tax received by him in the turnover. In fact, the asses see was legally obliged to declare its turnover inclusive of service tax received. The assessee cannot be exonerated from its liability by saying that he accounted for the service tax received separately. Since the assessee did not pay service tax as contemplated u/s. 43B(a) and as per above provisions of Service Tax Act within the stipulated time, therefore, the ld. CIT(A) has rightly disallowed the same u/s. 43B of the IT Act. The case laws relied by the assessee are based on different footings as in all the decisions it was held that Service Tax was not at all payable because the service Tax was not received from the customer. The law prevailing at that particular time was that Service Tax was to be paid to the Government only when Service Tax is received from the service receiver to the service provider. Subsequently, there is change in the law which provides that Service Tax is to be deposited by the service provider even if service tax is not paid by the service receiver to the service provider. Therefore, in all those decisions it was held that service tax outstanding is hit by the provisions of Section 43B of the Income Tax Act. 1961. Due to the change in the law now those decisions does not help to the assessee. Moreover, the assessee has filed the service tax returns belatedly, i.e., for April to June on 16.04.20 15, for July to September and half yearly from October to March, 2013 on 08.07.2015. In view of all these facts, the ld. CIT(A) has rightly dealt with the issue in question by giving elaborate findings in the impugned order regarding confirmation of addition u/s. 43B of the Act, which we do not find fit to be interfered with. Accordingly, the appeal of the assessee deserves to be dismissed.”

6.2 In view of the above binding precedents, I am of the opinion that the service tax collected by the assessee and not paid to the Government exchequer before the due date of filing of return, is to be disallowed, though it was not charged to the profit and loss account and it attracts the provisions of section 43B of the Act and the present provisions of section 145A of the Act cannot be applied in view of non obstante clause in section 43B of the Act.

6.3 However, the assessee raised an alternative plea before us that it should be allowed on actual payment in the assessment year in which it was actually paid. We accept this plea of the assessee and direct accordingly.

7. The next ground is regarding the disallowance of brought forward loss of Rs.9,34,983 arises due to additions made u/s 43B & 36(1)(va) for the financial years 2012-2013 and 2013- 2014 relevant to the assessment years 2013-2014 and 20 14- 2015.

8. According to the assessee, it is consequential and the income of the assessee for those years has computed after giving effect to the appellate orders for the respective assessment years. On this count, the CIT(A) also has given direction to the A.O. to verify the brought forward losses and consider the same in accordance with law. Since the CIT(A) has already given a direction to consider the above claim of the assessee, I do not find it necessary to give any further directions on this issue.

9. In the result, the appeal filed by the assessee is partly allowed.

Order pronounced on this 30th day of January, 2020.

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